Original Notice.

     Preproposal statement of inquiry was filed as WSR 07-22-116.

     Title of Rule and Other Identifying Information: Chapter 173-518 WAC, Water resources management program for the Dungeness portion of the Elwha-Dungeness Water Resource Inventory Area (WRIA 18).

     Hearing Location(s): Guy Cole Center, Carrie Blake Park, 202 North Blake Avenue, Sequim, WA, on June 28, 2012, at 5:00 p.m. - Open house; 6:00 p.m. - Presentation with questions and answers followed by public hearing.

     Date of Intended Adoption: August 31, 2012.

     Submit Written Comments to: Ann Wessel, Department of Ecology, Bellingham Field Office, 1440 10th Street, Suite 102, Bellingham, WA 98225-7028, e-mail awes461@ecy.wa.gov, fax (360) 715-5225, by 5:00 p.m., July 9, 2010 [2012].

     Assistance for Persons with Disabilities: Contact Judy Beitel by June 20, 2012, TTY 711 or (877) 833-6341.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To better manage water resources in the Dungeness watershed, the local watershed planning unit recommended that ecology adopt, in rule, a water resource management strategy for the watershed, including protection of instream flows and mitigation requirements for new water uses. The watershed plan recommendations were approved by the Clallam County Board of Commissioners on June 7, 2005. The key rule elements include:

•	Setting instream flow levels in the watershed to protect aquatic resources, including habitat for threatened salmonids;
•	Closing surface waters to new withdrawals with the exception of seasonal water from the Dungeness River;
•	Requiring mitigation for all new consumptive uses of water, including permit-exempt withdrawals;
•	Establishing reserves of water for future domestic use;
•	Setting maximum allocations of water from the mainstem Dungeness during the open period;
•	Allowing storage projects; and
•	Requiring measuring of new water uses.

     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 is obligated to use the plan for making future water resource decisions for the watershed. The proposal also furthers the state of Washington's water management goals and ecology's statutory obligations.

     Statutory Authority for Adoption: Chapters 90.03, 90.22, 90.42, 90.44, 90.54, and 90.82 RCW.

     Statute Being Implemented: Chapters 90.03, 90.22, 90.42, 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: Ann Wessel, Department of Ecology Bellingham Field Office, 1440 10th Street, Suite 102, Bellingham, WA 98225-7028, (360) 715-5215; Implementation and Enforcement: Mike Gallagher, Department of Ecology Southwest Regional Office, 300 Desmond Drive, Lacey, WA 98503, (360) 407-6058.

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

     A small business is defined as having fifty or fewer employees. Estimated impacts are determined as compared to the existing regulatory environment-the way water would be regulated and used in the absence of the proposed rule.

     The existing regulatory environment is called the "baseline" in this document. It includes only existing laws and rules at federal, state, and local levels, and how they would be applied in context.

     The proposed rule does not impact existing water users who continue using water for the same purposes in the same amounts. This is true of adjudicated water rights, or water rights based on claims, permits, certificates, and the groundwater permit exemption.¹ Only new uses of water would be required by the rule to meter and to mitigate for the impact of the consumptive use of water. Therefore, the proposed rule cannot have disproportionate impacts on existing small businesses, unless they choose to expand their use of water and not seek water service from a public water system or municipal supplier with adequate capacity.

     In the future, however, as the population of the area affected by the proposed rule grows (as is estimated in the cost-benefit analysis, Ecology publication # 12-11-020), new population will likely require new goods and services, as well as new jobs in the area. It is those not-yet-existing businesses (home-based goods and services, domestic water use in independent commercial establishments, small production industry) that may incur compliance costs under the proposed rule, and those costs may be disproportionately large for small businesses.

     In the appendices, ecology has illustrative discussion of the prospective compliance costs to:

•	A single business that does not yet exist, but might locate in the Dungeness in the future.
•	A Dungeness economy that would grow twice as large as it currently is (and is otherwise identical).

     This document is intended to be read with the associated cost-benefit analysis (Ecology publication # 12-11-020), which contains more in-depth discussion of the analyses, as well as references and appendices.

     A small business is defined as having fifty or fewer employees. Estimated impacts are determined as compared to the existing regulatory environment-the way water would be regulated and used in the absence of the proposed rule.

     The existing regulatory environment is called the "baseline" in this document. It includes only existing laws and rules at federal, state, and local levels, and how they would be applied in context.

•	Sets instream flow levels for the Dungeness mainstream, tributaries, and independent drainages.
•	Closes subbasins to new surface water withdrawals for at least part (if not all) of the year.
•	Requires mitigation of all new groundwater uses, and provides for a water exchange to facilitate mitigation. This includes permitted and permit-exempt uses.
•	Requires metering of all new withdrawals. This includes permitted and permit-exempt uses.
•	Establishes reservations ("reserves") under RCW 90.54.050(1) for domestic (indoor) use.
•	Establishes maximum depletion amounts to limit temporary adverse impacts for nondomestic water use under an approved mitigation plan, and set a limit on total impacts from all new water uses to closed surface waters.
•	Establishes maximum allocation amounts for interruptible purposes from high flows from the Dungeness mainstem.
•	Includes a provision allowing storage projects for environmental enhancement.

     In the future, however, as the population of the area affected by the proposed rule grows (as is estimated in the cost-benefit analysis, Ecology publication # 12-11-020), new population will likely require new goods and services, as well as new jobs in the area. It is those not-yet-existing businesses (home-based goods and services, domestic water use in independent commercial establishments, small production industry) that may incur compliance costs under the proposed rule, and those costs may be disproportionately large for small businesses.

     While ecology determined that the proposed rule will not likely have disproportionate impacts on existing businesses (and, therefore, cannot discuss compliance costs, mitigation of disproportionate impacts, or jobs impacts in this document), ecology felt the public would benefit from a discussion in addition to the required small business economic impact statement (SBEIS) determinations, addressing not-yet-existing businesses that might locate in the Dungeness watershed in the future.

     In the appendices, ecology has illustrative discussion of the prospective compliance costs to:

•	A single business that does not yet exist, but might locate in the Dungeness in the future.
•	A Dungeness economy that would grow twice as large as it currently is (and is otherwise identical).

     Again, these appended examples are not compliance impacts of the proposed rule on existing businesses in an industry; they illustrate how the proposed rule would impact hypothetical businesses in the future. This illustration is not possible for all proposed rules, but is possible for the proposed Dungeness rule.

     In broad terms, a future business might incur compliance costs under the proposed rule, up to:

•	Metering costs of $500.
•	Mitigation costs for new permit-exempt water use, of $1,500 - $16,500 per acre-foot (AF), or $1.68 - $18.48 per gallon.3

     Metering costs would likely be constant, regardless of water use or business size. In that case, the proposed rule's metering requirement would impose disproportionate costs on small new businesses.⁴

     Using a report from the Pacific Institute on prospective water-saving measures for businesses, ecology assumed water use to be linearly related to the number of employees (given an industry). In that case - if water use, cost per unit of water, and number of employees are linearly related - the proposed rule's mitigation requirement would not impose disproportionate costs on small new businesses, by industry. Because different industries would use different amounts of water per employee, however, or have differently sized businesses, the proposed rule's mitigation requirement might have disproportionate impacts across new businesses in different industries.⁵

     Overall, looking at a hypothetical business that might locate in the Dungeness in the future, the proposed rule is likely to impose disproportionate impacts on small new businesses (compared to large new businesses). This means that future growth in jobs could be reduced; though job growth would still be positive when a new business moved to the area, it might be smaller job growth than without the proposed rule, if we look at only compliance costs.

     Looking beyond compliance costs, in the absence of the proposed rule, litigation could result in reduced development in the watershed. This would be a large reduction in future jobs as well - impacting small and large businesses alike, and perhaps not allowing a new business to locate in the Dungeness at all - and the proposed rule would help to avoid those job and development losses.

     A business locating in the Dungeness could incur compliance costs under the proposed rule, up to:

•	Metering costs of $500.
•	Mitigation costs for new permit-exempt water use, of $1,500 - $16,500 per acre-foot (AF), or $1.68 - $18.48 per gallon.6

     Ecology assumed the following water uses based on business type by standard industrial classification (SIC) code, and limited to those industry categories that exist in the Dungeness watershed, and which might be impacted by the proposed rule if new businesses locate in the affected area.⁷

     For each NAICS-to-business-size combination that would likely have to comply with the proposed rule, and was in the area regulated by the proposed rule, ecology calculated per-employee costs of compliance based on the fixed and per-gpd costs discussed at the beginning of this section. These costs would be paid in the first year only. Costs each year after that would be identical per-employee costs within each industry.

     The largest ten percent of businesses (across all industries) that could likely be impacted would overlap with the set of small businesses, and using the required comparison of the largest ten percent of businesses to small businesses, the respective comparison of cost ranges is $18 - $4,158 and $299 - $9,191. While these ranges overlap, it is still possible that small businesses would pay more per employee to comply with the proposed rule than large businesses would. This would only be true in the first year, when constant metering costs are incurred. Again, existing businesses are not likely to be impacted by the proposed rule, but this illustrative example of an economy doubling over time indicates that new small businesses could experience disproportionate costs.

     In this example to illustrate the disproportionate impacts of first-year compliance costs, ecology expects the following industries to be required to comply with the proposed rule.

     In this illustrative example, ecology estimated jobs impacts if the economy of the Dungeness doubled from its current state under the proposed rule. Ecology estimated the proposed rule could result in the loss of 64 - 96 new jobs over twenty years.¹⁰ A doubling economy, however, would still otherwise create five thousand to fifteen thousand local jobs¹¹ in industries that might be impacted by the proposed rule if new businesses use new permit-exempt water. If there was no growth in businesses and their permit-exempt water use, there would also be no job losses. Similarly, ecology does not expect existing businesses to be impacted by the proposed rule, based on their existing water use and behavior (see Section 3).

     Looking beyond compliance costs, in the absence of the proposed rule, litigation could result in reduced development in the watershed. This would be a large reduction in future jobs as well - impacting small and large businesses alike, and perhaps not allowing new businesses to locate in the Dungeness at all - and the proposed rule would help to avoid these job and development losses.

     Gleick, P, D Haasz, C Henges-Jeck, V Srinivasan, G Wolff, K Cushing, and A Mann (2003). Waste Not, Want Not: The Potential for Urban Water Conservation in California. For the Pacific Institute for Studies in Development, Environment, and Security, November 2003.

     Washington State Employment Security Department (2012). Workforce Explorer industry information for likely affected industries, https://fortress.wa.gov/esd/employmentdata/.

     ¹For in-depth discussion of permit-exempt water use, please see the associated cost-benefit analysis (Ecology publication #12-11-020).

     ²For in-depth discussion of permit-exempt water use, please see the associated cost-benefit analysis (Ecology publication #12-11-020).

     ³See the cost-benefit analysis for sources of these costs.

     ⁴Simply, a constant $500 cost divided by a small number of employees means a larger cost per employee at small businesses.

     ⁵Additionally, water use mitigation is based on CONSUMPTIVE use, which would also vary across industries.

     ⁶See the cost-benefit analysis for sources of these costs.

     ⁷Most values based on estimates from Gleick, et al. (2003) for urban water use.

     ⁸In this way - by using the MINIMUM number of employees in each category - ecology ensured the MAXIMUM number of businesses would fall under the 5,000 gpd usage allowed for domestic and industrial under a permit-exempt groundwater right.

     ⁹Normally, ecology would treat payments for water mitigation from one sector to another as a transfer (with negative impacts on one industry, and positive impacts on the other industry), but ecology could not confidently determine between which industries these transfers would flow, and so calculated jobs impacts based only on treating those payments for mitigation and compliance as losses to the state economy. This means the negative jobs impacts likely overestimate the actual impact on jobs. In reality, as these payments are transfers, net job losses will likely be smaller, and jobs across all industries may actually increase. The jobs impacts presented here are highly conservative overestimates of cost impact.

     ¹⁰This value is across the entire state economy; not just in the Dungeness. This value is across all industries in the state. Ecology could not determine how many of these jobs would be in the Dungeness watershed.

     ¹¹This value is in the Dungeness watershed affected by the proposed rule.

     A copy of the statement may be obtained by contacting ecology web page at http://www.ecy.wa.gov/programs/wr/instream-flows/dungeness.html or Water Resources Program Publications, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6872, fax (360) 407-7162, e-mail WRPublications@ecy.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting ecology web page at http://www.ecy.wa.gov/programs/wr/instream-flows/dungeness.html or Water Resources Program Publications, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6872, fax (360) 407-7162, e-mail WRPublications@ecy.wa.gov.

May 7, 2012

Polly Zehm

Deputy Director

OTS-3228.9

     (2) The department of ecology (ecology) adopts this chapter under the authority of the Watershed planning (chapter 90.82 RCW), Water Resources Act of 1971 (chapter 90.54 RCW), Water code (chapter 90.03 RCW), Regulation of public groundwaters (chapter 90.44 RCW), Minimum Water Flows and Levels Act (chapter 90.22 RCW), and Water resource management (chapter 90.42 RCW); and in accordance with the Administrative Procedure Act (chapter 34.05 RCW).

     (3) This chapter applies to the use and appropriation of surface and groundwater in the Dungeness River watershed begun after the effective date of this chapter. Unless otherwise provided for in the conditions of the water right in question, this chapter shall not affect:

     • Existing surface and groundwater rights established prior to adoption of the state surface water and groundwater codes, or by water right permit issued under state law;

     • Existing groundwater rights established under the groundwater permit-exemption where regular beneficial use began before the effective date of this chapter;

     • The ability to serve water to a parcel that is part of a group domestic use under the groundwater permit exemption, provided the new use begins within five years of the date water was first regularly and beneficially used by one or more parcels in the group, and the group use remains within the limit of the groundwater permit exemption; and

     • Federal and tribal reserved rights.

     (4) In adopting this chapter, ecology generally enacts recommendations from the 2005 Elwha-Dungeness watershed management plan. The plan recommendations were approved on April 15, 2004, by the Dungeness River and Elwha-Morse management teams, groups composed of a broad range of local water interests. The Clallam County board of commissioners approved the plan on June 7, 2005. Ecology has used plan recommendations as the foundation for developing this rule.

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

     "Appropriation" means the process of legally acquiring the right to use specific amounts of water for beneficial uses, consistent with the ground and surface water codes and other applicable water resource statutes.

     "Beneficial use" means uses of water as defined in chapters 90.03 and 90.54 RCW and WAC 173-500-050.

     "Closure" means that water is no longer available for future appropriations without mitigation to offset the use. This is due to a finding by ecology that further appropriations from the closed stream(s) or hydraulically connected groundwaters would impair senior water rights or cause detriment to the public interest.

     "Consumptive use" means use of water that diminishes the volume or quality of the water source.

     "Control station" means a specific location where stream flows and water levels are measured.

     "Critical period" means for a given stream the thirty-day period with the lowest stream flow available to support a critical life stage for fish, as determined by Washington state department of fish and wildlife, ecology, and tribes, typically during the late summer or fall.

     "Cubic foot per second" or "cfs" means the rate of flow representing a volume of one cubic foot passing a given point during one second.

     "Domestic use" means use of water associated with human health and welfare needs, including water used for drinking, bathing, sanitary purposes, cooking, laundering, and other incidental household uses. Domestic use does not include outdoor irrigation such as lawn or garden watering.

     "Dungeness water exchange" means a water bank pursuant to the Water Resources Management Act, chapter 90.42 RCW.

     "Ecology" means the Washington state department of ecology.

     "Existing water right" includes perfected riparian rights, federal Indian and non-Indian reserved rights, or other perfected and inchoate appropriative rights, including water rights established under RCW 90.03.260 through 90.03.290 and 90.44.050.

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

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

     "Interruption" means a temporary halt or reduction in the rate and volume of withdrawal under water rights issued after the effective date of this rule during periods when the flow in the river or stream falls below the instream flow levels set in WAC 173-518-040.

     "Maximum depletion amount" means a limit on how much impact to water resources resulting from groundwater withdrawals will be allowable under this rule before ecology declares water is not available.

     "Mitigation" means action taken to offset impacts from future water appropriations on closed surface water bodies or senior water rights, including the instream flow levels set in WAC 173-518-040, as provided in WAC 173-518-070.

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

     "Permit-exempt withdrawals" or "permit exemption" means a groundwater withdrawal exempted from ecology water right permitting requirements under RCW 90.44.050, but which is otherwise subject to the groundwater code and other applicable regulations.

     "Proponent" means the person or entity that seeks a new appropriation of surface or groundwater, including through a permit exempt withdrawal.

     "Public water system" means any system that provides water for human consumption or municipal purposes through pipes or other constructed conveyances. This includes systems classified by Washington department of health to be either Group A or B, and excludes a system serving one single-family residence or a system with four or fewer connections serving residences on the same farm.

     "Reservation" means a limited allocation of water for future new uses not subject to interruption when stream flows fall below the levels adopted in this rule.

     "Stream flow" means the amount of water flowing down a stream.

     "Subbasin management unit" means a stream segment, reach, or tributary basin where a particular instream flow level, reservation, water diversion, or withdrawal limit applies.

     "Timely and reasonable" means the timing and cost involved in providing potable water service by a public water system to a property consistent with Washington department of health guidance and local coordinated water system plan definitions.

     "Water budget neutral" means either placement of other water rights into the trust water right program or stream flow improvement with appropriate assurances, that are at least equivalent to the amount of consumptive use of a proposed project.

     "Water resource inventory area (WRIA)" means one of the sixty-two areas designated by the state of Washington through chapter 173-500 WAC to delineate area boundaries within the state for water management purposes.

     "Water right change or transfer" means a change in the place of use, point of diversion or withdrawal, number of points of diversion or withdrawal, or purpose of use (including season of use), of an existing water right. A water right change application must be filed with ecology for approval. If approved, the modified water right will carry the priority date of the original water right.

     "Water right permit" means a permit that represents approval by ecology to appropriate water for a beneficial use.

     "Withdrawal" means the extraction and beneficial use of groundwater, or the diversion and beneficial use of surface water.

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     (2) Instream flows established in this rule are necessary to meet the water resource management objectives of the Elwha-Dungeness Watershed Plan.

     (3) Instream flows established in this rule are water rights and will be protected from impairment by any new water rights commenced after the effective date of this chapter and by future water right changes and transfers.

     (4) Instream flows are expressed in cubic feet per second (cfs), and are measured at the control stations identified in Table I. Tables II A and B identify instream flows set by this rule.

     (5) Exceptions to the instream flow requirements are provided in WAC 173-518-070, 173-518-080, and 173-518-085. Any other new water uses established after the effective date of this rule will be subject to interruption when stream flows drop below the instream flow levels set in Table II.

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     (1) Water meters must meet ecology's specifications.

     (2) Water meters must be read and reported in accordance with chapter 173-173 WAC or as directed by ecology.

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     (1) Based on the hydrogeology of the basin, ecology determines that surface water and groundwater sources within the Dungeness watershed are hydraulically connected.

     (2) If connection to a public water supply is not available in a timely and reasonable manner, then a new withdrawal from another well is allowed. Written evidence that connection is not available must be provided to ecology or the county before another well may be used for a new withdrawal.

     • A new permit-exempt withdrawal may receive water from an existing group domestic water system operating under the groundwater permit exemption. The new withdrawal will be considered an additional and separate exemption.

     (3) New groundwater rights, including permit-exempt withdrawals under RCW 90.44.050, may be obtained that are not subject to the instream flows established in WAC 173-518-040 or to the closures established in WAC 173-518-050 if all statutory requirements are met and any of the following situations apply:

     (a) A proposed use that would impact any surface water sources listed in Table III is mitigated through an ecology-approved mitigation plan, as defined in WAC 173-518-075.

     (i) Water use may be mitigated through the purchase of credits available through the Dungeness water exchange. The exchange will identify methods and means of mitigation, including the use of water resources management techniques and water banking authorized under RCW 90.03.255 and chapter 90.42 RCW. The 2008 Dungeness Groundwater Flow Model (Pacific Groundwater Group, 2009) will be the basis for determining credits for offsetting the consumptive use associated with the proposed water use. At the time of rule adoption the 2008 Dungeness Groundwater Flow Model represents the best available method for calculating mitigation credits. If ecology determines a better method is available in the future, then ecology will apply the new method. Drilling to the middle or deep aquifer, where available, is encouraged.

     (ii) As an alternative to acquiring mitigation through the Dungeness water exchange, the proponent may choose to submit a mitigation plan. Ecology must approve the mitigation plan prior to plan implementation. If ecology determines that the mitigation is no longer effective, the water use shall cease until an effective mitigation plan is put in place.

     (b) The proposed use is nonconsumptive, and is compatible with the intent of this chapter.

     (c) The proponent shows, through scientifically sound studies and technical analysis, and to the satisfaction of ecology, that the proposed use will not adversely affect any surface waters closed in WAC 173-518-050.

     (4) All new wells drilled must comply with state well drilling requirements in chapter 173-160 WAC, in particular the provisions to prevent contamination between aquifers in WAC 173-160-241.

     (5) New permits for groundwater withdrawals may include a provision requiring that the permittee allow ecology employees access to the well and any associated measuring device upon request at reasonable times.

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     (1) The mitigation plan must:

     (a) Ensure mitigation measures remain effective as long as the water use occurs.

     (b) Include affirmative measures to prevent water provided for mitigation under the plan from being appropriated for any other purpose or by another person or entity.

     (c) Include a monitoring and reporting plan, with a quality assurance/quality control plan.

     (2) The mitigation plan must show that the proposed withdrawal with mitigation in place will not:

     (a) Impair existing water rights;

     (b) Be detrimental to the public interest, including consideration of projected domestic use in the area, the projected stream depletions within affected subbasins, the likelihood that mitigation to offset such projected stream depletions can be obtained or achieved, water budget neutrality with respect to the Dungeness River watershed, and maximizing instream benefits during the critical period; or

     (c) Result in a net loss of water from a closed source greater than the applicable maximum depletion amounts.

     (3) The plan must include financial assurance for implementing the plan. Ecology may, for any reason, refuse any performance security ecology does not deem adequate. Financial assurances may include:

     (a) A bank letter of credit;

     (b) A cash deposit;

     (c) A negotiable security;

     (d) An assignment of a savings account;

     (e) A savings certificate in a Washington bank;

     (f) A corporate surety bond executed in favor of the department of ecology by a corporation authorized to do business in the state of Washington under Title 48 RCW; or

     (g) Other financial assurance deemed adequate by ecology.

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     (1) Fully offset impacts to surface water;

     (2) Benefit stream flows; or

     (3) Otherwise substantially enhance or protect the quality of the natural environment.

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     Based on this finding, ecology hereby reserves specific quantities of groundwater for future domestic supply only. These reserves of water are not subject to the instream flows established in WAC 173-518-040 or closures established in WAC 173-518-050.

     Consumptive water use that would impact surface water sources listed in Table III must be mitigated in accordance with this chapter. Reserves shall be debited when mitigation water is not available. Table IV shows the reserve quantities for each subbasin management unit.

     (a) Access to the reserves shall be only for the purpose of domestic water use as defined under WAC 173-518-030.

     (b) Water use shall meet all applicable local or state conservation standards and be consistent with the watershed plan.

     (3) If a use from a reserve does not comply with all conditions of the reserves, ecology may take action under WAC 173-518-110.

     (4) Ecology shall maintain a record of all appropriations from the reserves and will make this information available on ecology's web page.

     (5) Ecology will account for water use from the reserves by debiting the calculated impacts to each closed surface water. The impacts to surface water are calculated as a percentage of the consumptive portion of estimated or measured water use. The debits to the reserves will be determined after consideration of any implemented mitigation.

     (a) For a new domestic use served by an individual or community on-site septic system, ecology will use a standard consumptive amount of fifteen gallons per day.

     (b) For a new domestic use served by a sanitary sewer, ecology will use a standard consumptive amount of one hundred fifty gallons per day.

     (c) Impacts to the closed surface waters listed in Table III will be calculated using the 2008 Dungeness Groundwater Flow Model (Pacific Groundwater Group, 2009), unless, in the future, ecology determines a better method is available.

     (d) Ecology may periodically adjust the amounts deducted from the reserves based on the best information available on actual water use.

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     (2) The maximum depletion amounts shall not be exceeded.

     (3) No new use that would result in impacts to closed surface waters exceeding the maximum depletion amounts during the critical period shall be allowed. If the cumulative impact calculated for a subbasin exceeds the maximum depletion amount, additional mitigation must be achieved before new uses impacting that subbasin can be authorized.

     (4) Ecology shall maintain a record of all appropriations that result in deductions against the maximum depletion amounts. Ecology will account for water use from the maximum depletion amounts by debiting the calculated impact to each closed surface water. The impacts to surface water are calculated as a percentage of the consumptive portion of estimated or measured water use. The deductions from the maximum depletion amounts will be determined after consideration of any implemented mitigation.

     (a) For parcels served by an individual or community septic system, ten percent of indoor water use is assumed consumptive.

     (b) For parcels served by a sanitary sewer system, one hundred percent of indoor water use is assumed consumptive.

     (c) Ninety percent of outdoor water use is assumed to be consumptive.

     (d) Impacts to the closed surface waters listed in Table III will be calculated using the 2008 Dungeness Groundwater Flow Model (Pacific Groundwater Group, 2009), unless, in the future, ecology determines a better method is available.

     (e) The amounts deducted against the maximum depletion amounts may be adjusted periodically by ecology, to reflect actual use based on the best information available.

     (5) Maximum depletion amounts are associated with, and not in addition to, the reservation amounts listed in WAC 173-518-070. Table V shows the maximum depletion amounts for each subbasin management unit.

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     (b) Maximum allocations are established in Table VI for use in reviewing applications for interruptible water rights during times when stream flows exceed the instream flows for the Dungeness River mainstem from November 16 - July 14. Cumulative allocations must not exceed the numbers listed in Table VI, and must not impair instream flows.

     The water rights from the maximum allocation are subject to the instream flows set in WAC 173-518-040, and other provisions in statute, administrative rules, and case law.

     (3) Ecology will track the amount of water appropriated from the Dungeness River from the maximum allocation. When the maximum allocation is fifty percent, seventy-five percent, and fully appropriated, ecology shall notify Clallam County in writing. Once fully and permanently appropriated, no more maximum allocation water may be appropriated.

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     • The management objectives of the storage project;

     • The effect of the project on salmonids;

     • The effect of the project on ecological functions provided by high stream flows;

     • The cumulative effects of all such projects weighed against the public benefit the stored water would provide.

     (2) The application for the storage project must include a monitoring and adaptive management component and show the ability to implement such a program. All other applicable permits must be obtained.

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

     (a) First attempt to achieve voluntary compliance, except in egregious cases involving potential harm to other water rights or to the environment. An approach to achieving this is to offer information and technical assistance to the person, in writing, identifying 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 shall issue a notice of violation, a formal administrative order under RCW 43.27A.190, or assess civil penalties under RCW 90.03.600.

     (3) Nothing in this section prevents ecology from taking immediate action to stop a violation if in the opinion of ecology the nature of the violation is causing harm to other water rights or to public or tribal resources.

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     (2) If flow in the Dungeness River, calculated at river mile 4.2, attains an average daily flow of 105 cfs during the thirty-day critical period for eight out of ten consecutive years, then ecology will assess whether new instream flow or other technical studies are warranted for the Dungeness River.

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