WSR 97-17-081

PROPOSED RULES

DEPARTMENT OF ECOLOGY

[Order 97-14--Filed August 19, 1997, 12:30 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-12-091.

Title of Rule: Water right administration.

Purpose: Establish criteria under which ecology may prioritize processing of certain applications for water right or applications for change or transfer of water right.

Other Identifying Information: The proposed rule will also allow ecology to investigate pending water right applications by geographic area or water source.

Statutory Authority for Adoption: RCW 43.21A.064(8) and 43.27A.090(11).

Statute Being Implemented: Chapters 90.03, 90.44, and 90.54 RCW.

Summary: This rule is to expand upon and make permanent an emergency rule filed June 20, 1997, WSR 97-14-017, to allow ecology given its backlog of water right applications, to set priorities for deciding which water right applications are evaluated before any others. The proposed rule expands upon the emergency rule in allowing ecology to investigate pending water right applications by geographic area or water source and by documenting the elements of a basin assessment.

Name of Agency Personnel Responsible for Drafting: Stephen J. Hirschey, Olympia, (360) 407-6450; Implementation and Enforcement: Keith E. Phillips, Olympia, (360) 407-6602.

Name of Proponent: Department of Ecology, governmental.

Rule is necessary because of state court decision, Hillis v. Ecology et al. Supreme Court No. 63399-1.

Explanation of Rule, its Purpose, and Anticipated Effects: This rule is to expand upon and replace an emergency rule filed June 20, 1997, to allow the Department of Ecology, given its backlog of water right applications, to set priorities for deciding which water right applications may be evaluated before any others. The department does not have the resources to address all pending water right applications in a timely manner. The lack of resources necessitates the department being able to prioritize applications by type and geographically. The rule will enable the department within its regional offices to prioritize geographic areas to evaluate pending water right applications, and to prioritize certain other water right applications for expedited decisions, provided criteria are met. The anticipated effect of this rule is to comply with the Kittitas County Superior Court order to adopt an adequate rule pertaining to the investigation of water right applications. The rule should also provide for increased efficiency and productivity of ecology's application review staff and provide more predictability for applicants as to when they may receive a decision on a pending application.

Proposal Changes the Following Existing Rules: Rule will make permanent an emergency rule filed June 20, 1997, WSR 97-14-017.

No small business economic impact statement has been prepared under chapter 19.85 RCW.

regulatory fairness act compliance document


Introduction: The Regulatory Fairness Act (chapter 19.85 RCW) requires that proposed rule-making actions be evaluated for disproportionate burdens upon small versus large businesses and that mitigation be provided for any found if feasible and legal under that statute being implemented. Review of the above-cited proposed rule results in a conclusion that no disproportionate burdens are imposed. This discussion presents the basis for that conclusion.

Background: This proposed rule is the result of a recent Washington State Supreme Court decision (Larry and Veralene Hillis vs. State of Washington, Department of Ecology et al.). The essence of that decision was that certain policies and practices adopted and applied by ecology in administration of the water rights application process should be formalized under the rule-making processes of the Administrative Procedure Act. This proposal is in response to that finding.

The essential features of the proposed rule include:

1. A formal statement of ecology's regional office structure with a specification that water right applications within the jurisdiction regional offices (or other regional delineations) will be processed in order of application date, with provision for investigations of applications for water from the same source in order to facilitate "batch processing" of competing applications from the same source;

2. Provision for basin assessments and for assignment of priorities to basins, water sources or geographic areas to determine the order in which assessments will occur, with further provision that action on all applications for water rights in an assessment area will be deferred pending completion of an initial assessment, but, when processed, will be addressed in the order received;

3. Establishment of criteria for priority processing of certain applications including those involving alleviation of public health or safety emergencies resulting from failing public water supply systems, certain applications for change or transfer of existing water rights, and applications for short term or nonconsumptive use involving preservation of public health and safety or enhancement/protection of environmental quality; and

4. Provision for deferring action on pending applications in areas where a general stream adjudication is proceeding.

Impacts: A wide variety of businesses and industries (any that have applied or may apply for a water right) are potentially affected by this proposed rule. Past experience has shown that most applications involved agricultural use, property development (residential and other), municipal/industrial water supply, and a variety of other businesses or activities. However, the nature of the impacts of this proposal are not related to the size of the business or activity involved.

Applications for water rights are filed by private sector entities in the expectation of obtaining an economic benefit (enhanced profit, increased property value, etc.) from water use resulting from a successful application. This proposed rule addresses the timing of ecology's processing of those applications. Applicants whose proposed water use occurs in a basin or from a source with a lower priority for assessment may experience a delay in the processing of their applications and in receiving a decision as to whether they are able to proceed relative to those in basins or from sources with higher assessment priority. (Of course, applicants within a given region or for water from a given source are also subject to delays based on their date of application and application backlogs. However, this is a normal, and expected, part of the water right application process.)

This, then, would imply a delay in obtaining the economic and financial returns for which water right applications are made, either on account of location in a lower priority assessment basin or region and/or on account of the applicants' temporal place in the line at the application window. However, there is no logical or necessary reason to expect that this impact would fall more heavily upon small businesses than large businesses in a given industry. Thus, and because this proposed rule simply formalizes and codifies existing, ongoing ecology policies and procedures in response to the finding of the court, it is concluded that the mitigation requirement of the Regulatory Fairness Act does not apply in this case.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. Because of the controversial history of water right applications, we are developing this rule as a significant legislative rule even though it is categorically a procedural rule.

Hearing Location: Public involvement activities will include formal hearings on the rule proposal. Dates and places for the hearings are as follows: In Spokane, on October 14, at 9:00 a.m.-12:00 p.m. at the Department of Ecology, Eastern Regional Office, North 4601 Monroe, Suite 100; in Wenatchee, on October 14, at 7:30-10:00 p.m. at the Red Lion Inn (now Doubletree Hotel) 1225 North Wenatchee Avenue; in Kennewick, on October 15, at 6:30-9:00 p.m. at the Kennewick Hanford Project Office, 1315 West 4th Avenue; in Yakima, on October 16, at 7:30-10:00 p.m. at the Department of Ecology, Central Regional Office, 15 West Yakima Avenue, Suite 200; in Everett, on October 21, at 6:00-9:00 p.m. at the Everett Public Library, 2702 Hoyt; in Olympia, on October 22, at 12:30-3:30 p.m. at the Department of Ecology, Headquarters Office, 300 Desmond Drive; and in Vancouver, on October 22, at 7:00-9:30 p.m. at the Clark Public Utilities Building, 1200 Ft. Vancouver Way.

For More Information: Steve Hirschey, (425) 649-7066, e-mail shir461@ecy.wa.gov, Department of Ecology, 3190 160th Avenue S.E., Bellevue, WA 98008-5452.

Assistance for Persons with Disabilities: Contact Felicia Curtis by October 1, 1997, TDD (360) 407-6606 or (360) 407-6199.

Submit Written Comments to: Stephen J. Hirschey, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, FAX (360) 407-7162, by November 7, 1997.

Date of Intended Adoption: December 17, 1997.

August 18, 1997

Dan Silver

Deputy Director

NEW SECTION

WAC 173-152-010 Purpose. This rule establishes the framework under which the department can provide for the orderly 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 and applications for change or transfer of existing water rights.

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NEW SECTION

WAC 173-152-020 Definitions. For the purposes of this chapter the following definitions apply:

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

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

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

(4) "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 water source" or "source of water" means an aquifer 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.

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NEW SECTION

WAC 173-152-030 Organization and management of work load. (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 application was received 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) of this section, conduct an investigation and make decisions on one or more water right applications for the use of water from the same water source. When numerous applications for water from the same water source are being investigated, the final decisions will be made in the order in which the applications were received. Each application will be considered individually under the requirements of chapters 90.03 and 90.44 RCW.

(4) The department may select a water source for investigation of water right applications. 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 needs for instream values, and hydrogeology of the basin;

(c) Risk of multiple applications impairing senior rights including both diversionary and instream flow rights;

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

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

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

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NEW SECTION

WAC 173-152-040 Basin assessments. (1) The department may conduct assessments to assemble and correlate information related to water use, water availability, the quantity of water allocated to existing rights and instream flow, and the hydrology of a basin to use in making decisions on future water resource allocation and use. 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 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:

(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 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) Multiple basin assessments may be conducted within a region at the same time. When the department determines it 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 decisions on all competing water right applications in the basin after publication of a notice to initiate a basin assessment and until the initial basin assessment is complete and published; and

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

(3) 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 trends; and

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

(b) Off stream water use characterization related to:

(i) Water 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 off 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;

(iii) Wildlife habitat requirements; and

(iv) Recreational requirements.

(4) Upon completion and publication of the initial basin assessment, the department in consultation with affected parties will 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) The department will make decisions on competing applications for water from a source of water within the basin where sufficient information for water resource allocation exists. If the department determines that the information assembled and correlated is not sufficient, the department may withdraw the water source from appropriation pursuant to RCW 90.54.050(2). The department in consultation and conjunction with affected 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) The information obtained and compiled during an investigation 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.

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NEW SECTION

WAC 173-152-050 Criteria for priority processing of competing applications. (1) An application may be processed prior to competing applications if the application resolves or alleviates a public health or safety emergency caused by a failing public water supply system currently providing potable water to existing users. 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 to correct the actual or anticipated cause(s) of the public water system failure. To be considered a failing public water system, the system 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 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 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 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 unacceptable for human use.

(2) An application may be processed prior to competing applications if the department determines:

(a) Immediate action is necessary for preservation of public health or safety; or

(b) The proposed water use is nonconsumptive and if approved would 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 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 or encourage wise management of the water resource;

(c) The change or transfer was filed by water right holders participating in the Yakima River adjudication, and a decision is needed expeditiously to ensure that conditional final orders of the Yakima County 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.

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NEW SECTION

WAC 173-152-060 Exceptions. Nothing in this chapter precludes the department from processing applications or requests filed for emergent or emergency circumstances under RCW 43.83B.410, 90.03.383(7), or 90.03.390 and/or where the law provides a specific process for evaluation of an application and issuance of a decision.

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