EMERGENCY RULES
Date of Adoption: May 9, 2001.
Purpose: To amend the state drought relief rule, chapter 173-166 WAC, by adding new WAC 173-166-085 to clarify the requirements for filing emergency water right applications during a declared drought emergency.
Statutory Authority for Adoption: RCW 43.27A.090(11), 43.83B.420.
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: A drought emergency exists in the state. This emergency poses a potential threat to public health from possible effects on drinking water supplies, and a potential threat to the general welfare of the public in its likely effects on irrigated agricultural and on those fish and wildlife which, in the judgement of federal and state authorities, are in danger of extinction. This rule will help individuals apply for emergency water supplies by identifying the information that must be provided to enable ecology to expedite processing of emergency drought permit applications, as well as changes to, and transfers of, water rights when necessary to avert harm to public health and general welfare.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Immediately.
May 9, 2001
Tom Fitzsimmons
Director
(2) Applications must be filed on a form provided by Ecology. Requests for an emergency drought permit must be filed on the form entitled, "Application for Water Right," and requests for a temporary change or temporary transfer of a water right must be filed on a form entitled, "Application for Change/Transfer of Water Right." Additional sheets may be attached for additional information. The initial application submission must provide:
(a) The information requested on the form;
(b) The statutory application filing fee;
(c) Evidence sufficient to demonstrate what a normal water supply is for the particular applicant, and that the applicant is receiving or is projected to receive seventy-five percent or less of that normal water supply;
(d) Evidence sufficient to demonstrate that the applicant is experiencing, or is expected to experience, undue hardship as a result of natural drought conditions;
(e) Evidence sufficient to demonstrate that the activity for which the applicant is seeking to be supplied water is a previously established activity, as defined by this chapter; and
(f) For applicants for a temporary change or transfer, evidence sufficient to indicate historical use of the water right the applicant is seeking to transfer or change.
(i) If the applicant is not seeking to either irrigate more acres than authorized under the existing right or transfer water to a beneficial use not presently authorized under the existing right, then historical use can be established by providing the information specified in subsection (6) of this section.
(ii) If the applicant is seeking to irrigate more acres than authorized under the existing right and/or to transfer water to a beneficial use not presently authorized under the existing right, then historical use must be established by providing information specified in subsection (7) of this section.
(3) Ecology will review the initial application submission and determine if any additional information is needed. Additional information may be required according to the nature of any emergency permit, temporary change or temporary transfer proposal. If ecology determines that additional information is necessary, within five days of receiving the application ecology will send notification to the applicant, at the address indicated on the application form, specifying the additional information required.
(4) If ecology requires additional information, an application is not complete until it includes all of the additional information requested by ecology, as well as that which is required by subsection (2) of this section. If, after review of the initial application submittal, ecology does not request additional information, and if the initial submittal meets the requirements of subsection (2) of this section, the initial application is complete.
(5) Applications for emergency temporary changes or temporary transfers of water rights which are filed during a drought emergency may include requests for changes to purpose of use, season of use, place of use, point of withdrawal, and point of diversion, or as otherwise authorized by chapter 43.83B RCW.
(a) A water right holder may reduce irrigated acreage and transfer the unused water to another water right holder whose normal water supply is decreased by drought conditions. The acreage irrigated with transferred water on the receiving parcel may not exceed the acreage reduction on the originating parcel.
(b) Additional acres may be irrigated, or uses of water may be added to an existing water right to allow water to be transferred to other previously established activities, only if such change results in no increase in the annual consumptive quantity of water used under the water right.
(6) Applications for temporary change or temporary transfer of an existing water right must provide evidence to show historical water use. The evidence must demonstrate the original extent of development of the right, the water quantities used, a pattern of consistent beneficial use of the water right since its establishment, and the water demand of crops grown or of other water uses. Historical evidence may include:
(a) A variety of documents, such as County Assessor records, land patent information, crop reports, electrical consumption records related to the pumping of water, aerial photographs, and personal statements and affidavits. Ecology cannot rely solely upon personal remembrances, statements or affidavits to establish historical water use. The evidence must, at a minimum, include at least one document or photograph produced during the historical period for which the water right holder is seeking to support the asserted water right.
(b) A water system plan.
(c) Copies of water well reports or other documents indicating the specific location of, and the construction specifications and material(s) penetrated in drilling for, any well through which water is withdrawn.
(7) Any application to temporarily change or transfer an existing water right that proposes to add additional irrigated acres or to add new uses, but that would not result in an increase in the annual consumptive quantity of water used under the water right, must include the following information:
(a) A record, by year, of the water quantities used, for both the instantaneous rate of withdrawal or diversion and the annual quantity, for a period of not less than the last five consecutive years of water use; if the water right has existed for less than five years, the record provided to ecology must cover the entire period of use. Instantaneous rates can be expressed in either gallons per minute (gpm) or cubic feet per second (cfs). The total annual quantity must be expressed in acre-feet per year. In lieu of measurements, estimates of water use may be submitted if the basis for the estimation is provided and found acceptable by the department.
(b) A description of the proposed alterations in current water use that will make water available for other previously established activities. Describe any of the following that apply to the proposal:
(i) Delivery system alterations that are designed to increase water use efficiency;
(ii) Cropping changes that are planned to reduce per-acre water use; and
(iii) An estimate of the instantaneous quantity of water, in either gpm or cfs, and an estimate of the overall quantity of water, expressed in acre-feet, which would be made available during the proposed duration of the temporary change.
(c) Measurements or estimates of any return flows associated with the water right for the last five consecutive years of water use. If an estimate is used, the basis for the estimate and the methodology used to determine return flows must be described.
(d) A description of water delivery and application system modifications required to supply the existing and proposed additional water uses.
(e) A description of the additional acres to be irrigated or other additional uses to be made of the water, as well as information to demonstrate those uses qualify as a previously established activity.
(i) If adding irrigated acres:
(A) The location and number of irrigated acres to be added;
(B) The existing condition of the acres to be added, and a description of any existing crops within those acres;
(C) The crop(s) to be irrigated within the added acres during the temporary change;
(D) The instantaneous capacity of the water delivery system proposed to serve the additional acres, expressed in either gpm or cfs; and
(E) The total estimated water requirement proposed for use on the added acres during the requested temporary change, expressed in acre-feet.
(ii) If adding new water uses to an existing right, for a beneficial use or uses previously established under a separate water right, describe:
(A) Each proposed additional water use and its location; and
(B) The actual or estimated instantaneous and annual water requirements for each proposed additional water use. Instantaneous water requirements may be expressed in either gpm or cfs. The total water quantity required during the temporary change should be expressed in acre-feet.
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