Original Notice.

Preproposal statement of inquiry was filed as WSR 99-15-093.

Title of Rule: Instream resources protection program -- Lower and Upper Skagit Water Resources Inventory Area (WRIA 3 and 4). The proposed rule sets instream flows that will condition future water rights.

Purpose: Establishment of instream lows for the Lower and Upper Skagit mainstem and Cultus Mountain tributaries. All pending and subsequent water right applications will be conditioned to the instream flows, if applicable.

Other Identifying Information: Ecology and others believe rules to protect the salmon runs must be adopted, where appropriate, as soon as practicable.

Statutory Authority for Adoption: Chapters 43.21A, 43.27A, 90.03, 90.44, 90.54 RCW.

Statute Being Implemented: RCW 90.54.020 (3)(a).

Summary: The proposed rule protects fish habitat in both the Lower Mainstem Skagit River and estuary areas. Water rights issued in the Lower and Upper Skagit watershed (WRIA 3 and 4) after the effective date of the rule must be consistent with the proposed instream flow rule, and could limit future diversions during low-flow periods of the year.

Reasons Supporting Proposal: The instream flows were developed through a collaborative effort among ecology, other state agencies, a workgroup formed under an MOA (which also worked with experts to identify appropriate instream flows), and affected tribes. The rule adoption process has been coordinated by ecology's Skagit watershed lead.

Name of Agency Personnel Responsible for Drafting: Rod Sakrison, NWRO/SEA, (425) 649-4447; Implementation and Enforcement: Dan Swenson, NWRO/WR, (425) 649-7270.

Name of Proponent: Washington State Department of Ecology, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: To implement the Skagit Instream Flow Committee's recommendation to limit all out-of-stream diversions to a biologically-safe amount, ecology made a determination of water availability, taking into account existing water rights.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rule would establish instream flows for the Lower Skagit Mainstem and Cultus Mt. Tributaries that will affect future water use in the entire Lower and Upper Skagit Watershed (WRIA 3 and 4). All pending and subsequent water right applications if approved would be subject to the proposed rule, if applicable. A determination of water availability is proposed to be established, based on a recommendation to limit total out-of-stream diversions to a biologically-safe amount. Existing water rights would not be affected, but would form the base of current water use that is subtracted from the amount of total allowable withdrawals to derive the amount of water available for new water rights. The determination of water availability ensures the protection of fisheries habitat and ecological processes, and provides for a certain amount of future water appropriations. The proposed rule would affect all future water use, if not exempted. It would not affect existing, legally-authorized water use.

     Certain secondary effects of urbanization may be caused by issuance of new water rights (e.g., destruction of wetlands from urban stormwater flows). Local and state efforts will continue to attempt to eliminate, minimize or mitigate these potential secondary adverse environmental effects. There are currently ninety-three water right applications for ground water and surface water pending in the Lower and Upper Skagit River Watershed (WRIAs 3 and 4). Water rights processing can resume once the proposed instream flow and water availability determination rule has been adopted. With the adoption of the proposed rule, new water rights could be issued from the waters determined to be available.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule establishes instream flows for rivers and streams in the Skagit Basin, identifies a maximum rate of withdrawal (during September) consistent with protection of the ecology of the Skagit River delta and tentatively identifies the amount of water still available for future consumptive withdrawal taking into account best available information about existing water rights and claims. Nothing in this rule has an inherent disproportionate impact on small versus large businesses. Under Washington law, pending applications for new water rights are dealt with in the order of their filing dates. Thus, one's place at the permit window is the determining factor - not the size or type of activity or businesses engaged in by the applicant.

     Costs are, of course, imposed on water right applicants by delay in dealing with their applications. These consist of foregone or delayed returns from proposed activities and, in some cases, of carrying costs on investment capital. These will occur with or without the proposed rule. Again, the magnitude of the costs borne in each individual case depends upon the temporal priority of the applicant in the process - not the size or type of business involved.

     Some applicants for new consumptive withdrawals from the Skagit system may bear a cost in the form of risks that their application may be denied (in whole or in part) due to unavailability of water. Again, this same risk exists with or without the proposed rule. However, the 200 cubic feet per second of water estimated to remain available for consumptive withdrawal exceeds the volume of water associated with currently pending water right applications in the Basin. Thus, unless the water availability finding changes in the near future, such risks are not likely to be incurred for some time.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. These rules are significant under RCW 34.05.328 because they establish standards for the issuance of water right permits.

Hearing Location: Skagit Valley Community College, Room F 101, Ford Hall, 2405 East College Way, Mt. Vernon, on Wednesday, November 29, 2000, at 7:00.

Assistance for Persons with Disabilities: Contact Christine Corrigan by November 20, 2000, TDD (360) 407-6006, or (Voice) (360) 407-6607.

Submit Written Comments to: Rod Sakrison, Skagit Watershed Lead, Northwest Regional Office, 3190 160th Avenue S.E., Bellevue, WA 98008-5452, fax (425) 649-7098, by December 8, 2000.

Date of Intended Adoption: February 7, 2001.

October 18, 2000

Daniel J. Silver

Deputy Director

INSTREAM RESOURCES PROTECTION PROGRAM -- LOWER AND UPPER SKAGIT WATER RESOURCES INVENTORY AREA (WRIA 3 AND 4)
NEW SECTION
WAC 173-503-010
General provision.

These rules apply to waters within the Lower and Upper Skagit water resources inventory area (WRIA 3 and 4), as defined in WAC 173-500-040, excluding the Samish River subbasin, Fidalgo, Guemes, Cypress, Hope and Goat islands. This chapter is promulgated pursuant to chapter 90.54 (Water Resources Act of 1971), chapter 90.22 RCW (Minimum water flows and levels), and chapter 173-500 WAC (Water resources management program).

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The purpose of this chapter is to retain perennial rivers, streams, and lakes in the Lower and Upper Skagit water resources inventory area and Cultus Mt. Tributaries with instream flows and levels necessary to provide for the protection and preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values, as well as recreation and water quality.

     Chapter 90.54 RCW (Water Resources Act of 1971) requires that utilization and management of waters of the state be guided by a number of fundamentals, including:

     Uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial. (RCW 90.54.020(1))

     The quality of the natural environment shall be protected and, where possible, enhanced, as follows:

     Perennial rivers and streams of the state shall be retained with base flows necessary to provide for the protection and preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served. (RCW 90.54.020 (3)(a))

     Waters of the state shall be of high quality. Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall be provided with all known, available, and reasonable methods of treatment prior to entry. Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations of the public interest will be served. (RCW 90.54.020 (3)(b))

     In administering and enforcing this regulation, the department's actions shall be consistent with the provisions of chapter 90.54 RCW.

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Ecology finds that (1) The magnitude or variability of flows are important in maintaining the aquatic ecosystem that sustains both fish and other valuable resources. Criteria to limit total withdrawals of water from the Lower Skagit River were developed to protect the aquatic ecosystem in the region covered by this rule.

     (2) To protect the estuary area below River Mile 8.1 the duration of flow inundation of at least one foot of depth, in selected estuary habitat, can be reduced no more than 10% from existing conditions from the date of enactment of this regulation. This criterion applies to the period of February through August to withdrawals from the Skagit River. Total withdrawals greater than 836 cubic feet per second during that period will result in a greater than 10% deviation from existing conditions and therefore would result in harm to the fisheries resources and aquatic ecosystem in the region covered by this rule.

     (3) Protection of the aquatic ecosystem of the estuary in the months of September through January requires that the total withdrawals of water from the Skagit River not exceed 1/10 of the 50% exceedence flow for each month, based on the period of record (1/1/41 - 12/31/95) for the US Geological Survey (USGS) stream gage on the Skagit River near Mt. Vernon, WA (Sta. #12-2005-00) in order to maintain channel morphology and other estuarine and riverine functions. This equates to a low point of 830 cubic feet per second during the month of September. Total withdrawals greater than 830 cubic feet per second during the month of September will not protect and preserve fish, wildlife and other environmental values and therefore would be harmful to fisheries resources and the aquatic ecosystem in the region covered by this rule in violation of chapter 90.54 RCW.

     (4) The rules setting minimum flows in the Lower and Upper Skagit River (WRIA 3 and 4) (WAC 173-503-040) and finding certain waters available (WAC 173-503-050) are necessary to protect and preserve wildlife, fish, scenic, aesthetic and other environmental values.

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(1) Stream management units and associated control stations are established as follows:

     (3) Instream Flow Hydorgraph.

Place illustration here.

     (4) The instream flow hydrographs, as represented in Figures 1 through 3 in WAC 173-503-040(3) shall be used for identification of instream flows.

     (5) Future consumptive water right permits issued hereafter for diversion of surface water in the Lower and Upper Skagit (WRIA 3 and 4) and perennial tributaries, and withdrawal of ground water in hydraulic continuity with surface water in the Skagit River and perennial tributaries, shall be expressly subject to instream flows established in WAC 173-503-040 (1) through (3) as measured at the appropriate gage, and also subject to WAC 173-503-060.

     (6) Future consumptive water rights issued to applications pending at the effective date of the regulation are superior in priority date but shall be conditioned on the instream flows established in WAC 173-503-040 (1) through (3). (RCW 90.03.247)

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(1) The department has made a determination that 200 cubic feet per second is available to be appropriated through ground water withdrawal or surface water diversion for further instantaneous consumptive appropriation in the Lower and Upper Skagit watershed (WRIA 3 and 4). These waters are available for appropriation, subject to existing rights, exemptions in WAC 173-503-070, and instream flows in WAC 173-503-040(2). This determination was based upon review of existing water right records and existing water use, and is consistent with the findings section (WAC 173-503-030) of this regulation.

     (2) The department advises that water rights issued to appropriate these waters determined to be available by this rule will be interruptible rights.

     (3) After these instantaneous diversion or withdrawal of the 200 cfs quantities identified in paragraph (1) of this section have been allocated by Ecology, the Lower and Upper Skagit Watershed WRIA 3 and 4) shall be withdrawn from further consumptive appropriations. This rule may be reopened to further consumptive appropriation only if further information demonstrates that such appropriations can be made consistent with the finding section (WAC 173-503-030) and the instream flow section (WAC 173-503-040). If further information demonstrates that the amount in the availability determination set forth in paragraph (1) of this section should have been less than 200 cubic feet per second, Ecology will not be bound by the 200 cubic feet per second number when processing individual water right applications.

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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 173-503-060
Ground water.

If the department determines that there is hydraulic continuity between surface water and the proposed ground water source, a water right permit or certificate shall not be issued unless the department determines that withdrawal of ground water from the source aquifer would not interfere with stream flows during the period of stream closure or with maintenance of minimum instream flows. If such findings are made, then applications to appropriate public ground waters may be approved subject to the flows established in WAC 173-503-040(2).

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(1) Nothing in this chapter shall affect existing water rights, including perfected riparian rights, federal Indian and non-Indian reserved rights, or other appropriative rights existing on the effective date of this chapter.

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

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(1) No rights to divert or store public surface waters of WRIA 3 and 4 which would conflict with the provisions of this chapter shall hereafter be granted, except as provided in RCW 90.54.020 (3)(a).

     (2) Consistent with the provisions of chapter 90.54 RCW, it is the policy of the department to preserve an appropriate minimum instream flow in all perennial streams and rivers as well as the water levels in all lakes in the Lower and Upper Skagit watershed (WRIA 3 and 4) by encouraging the use of alternative sources of water which include (a) reuse; (b) artificial recharge and recovery; (c) conservation; and (d) acquisition of existing water rights.

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In enforcement of this chapter, the department of ecology may impose such sanctions as appropriate under authorities vested in it, including but not limited to the issuance of regulatory orders under RCW 43.27A.190 and civil penalties under RCW 43.83B.335, RCW 90.03.400, RCW 90.03.410, RCW 90.03.600, RCW 90.44.120 and RCW 90.44.130.

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Review of the rules in this chapter may be initiated by the department of ecology whenever new information is available, a change in conditions occurs, or statutory modifications are enacted that are determined by the department of ecology to require review.

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