DEPARTMENT OF ECOLOGY

[Order 19-03—Filed November 19, 2019, 10:52 a.m.]

Preproposal statement of inquiry was filed as WSR 19-04-091.

Title of Rule and Other Identifying Information: Chapter 173-501 WAC, Instream resources protection program—Nooksack water resource inventory area (WRIA) 1. We are amending the WRIA 1 rule to meet the requirements in RCW 90.94.020. We are proposing to amend the rule to (1) add flexibility for projects that retime high flows; (2) establish domestic permit-exempt groundwater withdrawal limits for new users; and (3) make technical updates.

We have developed draft documentation to support rule making. The supporting documentation for the rule includes: The estimated consumptive use of new domestic permit-exempt wells in the WRIA for the next twenty years, projects and actions to offset potential impacts to instream flows associated with the permit-exempt domestic water use, and an evaluation for net ecological benefit to meet the requirements of the law.

For more information on this rule making visit https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC-173-501.

Hearing Location(s): On January 7, 2020, at 6:00 p.m., at Fairhaven Middle School, Commons Area, 110 Parkridge Road, Bellingham, WA 98225, presentation, question and answer session followed by the hearing; on January 8, 2020, at 3:00 p.m., at Lynden Middle School, Commons Area, 8750 Line Road, Lynden, WA 98264, presentation, question and answer session followed by the hearing; and on January 9, 2020, at 10:00 a.m., at the Department of Ecology, Padilla Bay Reserve, 10441 Bayview Edison Road, Mt. Vernon, WA 98273, presentation, question and answer session followed by the hearing.

Date of Intended Adoption: May 4, 2020.

Submit Written Comments to: Annie Sawabini, via U.S. mail at Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600; or via parcel delivery services to Department of Ecology, Water Resources Program, 300 Desmond Drive S.E., Lacey, WA 98503.

Submit comments by mail, online, or at the hearing(s); online http://oth.ecology.commentinput.com/?id=fdG6m, by January 17, 2020, at 11:59 p.m.

Assistance for Persons with Disabilities: Contact ecology Americans with Disabilities Act coordinator, phone 360-407-6831, people with speech disability may call TTY at 877-833-6341. People with impaired hearing may call Washington relay service at 711, email ecyADAcoordinator@ecy.wa.gov, by December 30, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: RCW 90.94.020 established requirements for a WRIA 1 watershed management plan update to be adopted by ecology by February 1, 2019. The statute directs ecology to begin rule making to meet the requirements of RCW 90.94.020 if a locally approved watershed plan update is not adopted by ecology by the deadline. A plan update was not submitted to ecology for review and adoption, so ecology is working on the required rule making.

We are using the rule-making process and supporting analysis to meet the requirements of the law to:

(1) Estimate twenty years of projected consumptive water use of new permit-exempt domestic withdrawals in WRIA 1;

(2) Develop a set of projects and actions that will offset the estimated consumptive water use and result in a net ecological benefit in the WRIA; and

(3) Amend and add regulations necessary for implementing these projects and actions.

Reasons Supporting Proposal: See purpose of the proposal above.

Statutory Authority for Adoption: Chapter 90.94 RCW, Streamflow restoration; chapter 90.22 RCW, Minimum water flows and levels; chapter 90.54 RCW, Water Resources Act of 1971; chapter 90.03 RCW, Water code; chapter 90.44 RCW, Regulation of public groundwaters; chapter 43.27A RCW, Water resources; chapter 43.21B RCW, Environmental and land use hearings office—Pollution control hearings board; RCW 43.21A.080 Department of ecology; chapter 18.104 RCW, Water well construction.

Statute Being Implemented: Chapter 90.94 RCW, Streamflow restoration; chapter 90.22 RCW, Minimum water flows and levels; chapter 90.54 RCW, Water Resources Act of 1971; chapter 90.03 RCW, Water code; chapter 90.44 RCW, Regulation of public groundwaters; chapter 43.27A RCW, Water resources; chapter 43.21B RCW, Environmental and land use hearings office—Pollution control hearings board; RCW 43.21A.080 Department of ecology; chapter 18.104 RCW, Water well construction.

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: Annie Sawabini, Kasey Cykler, Lacey, Bellingham, 360-407-6878, 360-255-4386; Implementation: Kasey Cykler, Bellingham, 360-255-4386; and Enforcement: Ria Berns, Bellevue, 425-649-7270.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Annie Sawabini, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, phone 360-407-6878, people with speech disability may call TTY at 877-833-6341. People with impaired hearing may call Washington relay service at 711, email annie.sawabini@ecy.wa.gov.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.030.

Explanation of exemptions: While we identified potential costs of reduced property values as a result of the proposed amendments, we did not identify any costs that covered residential permit-exempt water users or project proponents would incur in order to comply with the rule. See the regulatory analyses for more information. In past rule makings related to water resources, for example, compliance costs included the costs of metering and reporting. The proposed amendments would only add the conservation standard and project allowance, but would not require any monitoring, reporting, or other additional compliance behavior. We are therefore not required to perform analyses under the Regulatory Fairness Act, per RCW 19.85.030.

WAC 173-501-065Permit-exempt groundwater for future domestic uses.

(1) For the purposes of this section:

(a) "New permit-exempt domestic wells" are wells for groundwater withdrawals exempt from permitting under RCW 90.44.050 for the purposes of indoor domestic water use and outdoor domestic water use.

(b) "Indoor domestic water use" means potable water to satisfy the domestic needs of a household, including water used for drinking, bathing, sanitary purposes, cooking, laundering, and other incidental uses.

(d) "Subsistence gardening" means food cultivation for personal use by residents of the home.

(2) The requirements and limits in this section apply to new permit-exempt domestic wells constructed after the effective date of this rule amendment.

(3) Consistent with the provisions of RCW 90.94.020(5), a city or county issuing a building permit under RCW 19.27.097 (1)(c), or approving a subdivision under chapter 58.17 RCW, in this WRIA must:

(a) Record the limitations as described in subsection (5) of this section with the property title;

(b) Collect the applicable fee, as described in subsection (4) of this section;

(c) Record the number of building permits issued under chapter 19.27 RCW or subdivision approvals issued under chapter 58.17 RCW subject to the provisions of this section;

(d) Annually transmit to the department three hundred fifty dollars of each fee collected under this subsection; and

(e) Annually transmit an accounting of building permits and subdivision approvals subject to the provisions of this section to the department.

(4) Consistent with the provisions of RCW 90.94.020(5), an applicant for a building permit shall pay a fee of five hundred dollars to the permitting authority.

(5) The department establishes a conservation standard for withdrawals from new permit-exempt domestic wells as follows:

(a) Withdrawals from a new permit-exempt domestic well(s) serving a single connection are limited as follows:

(i) Indoor domestic water use shall not exceed five hundred gallons per day; and

(ii) Outdoor domestic water use shall be limited to an area not to exceed a total of one-twelfth acre, or three thousand six hundred thirty square feet. Outdoor domestic water use is in addition to indoor domestic water use set forth in (a)(i) of this subsection.

(b) Withdrawals from a new permit-exempt domestic well(s) serving a group domestic system that qualifies for the group domestic permit exemption under RCW 90.44.050 are limited as follows:

(i) Indoor domestic water use shall not exceed five hundred gallons per day for each connection, and shall not exceed a total of three thousand gallons per day for the entire group; and

(ii) Outdoor domestic water use shall be limited to an area not to exceed a total of one-twelfth acre, or three thousand six hundred thirty square feet, for each connection, and shall be limited to an area not to exceed a total of one-half acre for the entire group. Outdoor domestic water use is in addition to indoor domestic water use set forth in (b)(i) of this subsection.

(c) Upon the issuance of a drought emergency order under RCW 43.83B.405, withdrawals from new permit-exempt domestic wells may be curtailed by the department, except indoor domestic water use and withdrawals to maintain up to one-twelfth acre for each connection for noncommercial subsistence gardening purposes.

(d) The withdrawal limits defined in this subsection supersede the maximum annual average withdrawal limits specified in RCW 90.94.020.

(e) The department reserves the right to require metering and reporting of water use for domestic users as provided for under existing authorities. This includes, but is not limited to, RCW 90.44.050 and 90.44.250, and the provisions in chapter 173-173 WAC.

(f) Under all circumstances, the water use limits specified under RCW 90.44.050 shall not be exceeded.

AMENDATORY SECTION(Amending WSR 85-24-073, filed 12/4/85)

WAC 173-501-070Exemptions.

(1) Nothing in this chapter shall affect existing water rights, perfected riparian rights, federal Indian and non-Indian reserved rights, appropriative or otherwise existing on the effective date of this chapter, nor shall it affect existing rights relating to the operation of any navigation, hydroelectric, or water storage reservoir or related facilities.

(2) Single domestic surface water use, (including up to ((1/2))one-half acre lawn and garden irrigation and associated noncommercial stockwatering) shall be exempt from the provisions established in this chapter, except that Whatcom Creek is closed to any further appropriation, including otherwise exempted single domestic use. For all other streams, when the cumulative impact of single domestic diversions begins to significantly affect the quantity of water available for instream uses, then any water rights issued after that time shall be issued for in-house use only, if no alternative source is available.

(3) Nonconsumptive uses which are compatible with the intent of this chapter may be approved.

(4) New interruptible uses may be approved from streams regulated under WAC 173-501-040 if the department determines through the water right appropriation procedure under chapter 90.03 RCW that the proposed use is consistent with:

(a) The intent of chapter 90.94 RCW to offset potential impacts to instream flows associated with permit-exempt domestic water use; or

(b) Applicable laws and restores and enhances streamflows.