WSR 98-04-018

EMERGENCY RULES

DEPARTMENT OF ECOLOGY

[Order 98-01--Filed January 28, 1998, 8:05 a.m.]

Date of Adoption: January 23, 1998.

Purpose: To extend existing emergency rule, WSR 97-21-073, for processing certain water right or application for change or transfer of water rights. Proposal for permanent rule making was filed on August 19, 1997, as WSR 97-17-081. The intended adoption date for the permanent rule has been changed to February 18, 1998, by filing a continuance.

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

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The Superior Court of the state of Washington for Kittitas County ordered the Department of Ecology not to engage in any investigating or processing of pending ground water applications until appropriate rule making is completed. To prevent a state agency from conducting normal business will cause confusion and a situation that is not in the public interest. This rule will allow the Department of Ecology to issue decisions on certain pending applications while permanent rule making is completed.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 6, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 6, amended 0, repealed 0.

Effective Date of Rule: Immediately.

January 23, 1998

Tom Fitzsimmons

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 investigations of water right applications by geographic areas, and establish criteria for priority processing of applications for new water rights or 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 a 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, that the department determines to be an independent water body for the purposes of water right administration.

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NEW SECTION

WAC 173-152-025 Organization and management of workload. (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 are as follows:

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

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

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

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

(2) The department will make decisions on new water right applications or applications for change or transfer of an existing water right within a region or within a regional or field office's geographic area by the date the application was received except as provided for in subsection (3) of this section and WAC 173-152-040.

(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 RCW 90.03.290.

(4) The department may select a water source for investigation of water right applications based on one or more of the following conditions related to the water source:

(a) The number and age of pending applications, and the quantity 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) Implementation of water resource plans; and/or

(e) The projected population and economic growth in the area.

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NEW SECTION

WAC 173-152-040 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. The inability of any public water system to accommodate future population growth or other future uses does 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 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) The department may investigate and make decisions on applications for change or transfer to existing water rights 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;

(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

(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.

(3) 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.

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NEW SECTION

WAC 173-152-050 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.