DEPARTMENT OF ECOLOGY

[Order 19-03—Filed May 27, 2020, 4:03 p.m., effective June 27, 2020]

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

Purpose: 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, and to complete the rule making by August 1, 2020. A plan update was not submitted to ecology for review and adoption, so ecology performed the required rule making.

Ecology used the rule-making process and supporting analysis to meet the requirements of the law (RCW 90.94.020) 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.

Citation of Rules Affected by this Order: Amending chapter 173-501 WAC.

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.

Adopted under notice filed as WSR 19-23-084 on November 19, 2019.

A final cost-benefit analysis is available by contacting Annie Sawabini, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600 (US mail); or send parcel delivery services to: Department of Ecology, Water Resources Program, 300 Desmond Drive S.E., Lacey, WA 98503, 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, website https://fortress.wa.gov/ecy/publications/SummaryPages/2011081.html.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 1, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 1, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: May 27, 2020.

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.