Date of Adoption: April 19, 2001.

Purpose: To adopt a new rule (chapter 173-167 WAC) establishing criteria for providing drought-related assistance in the forms of grants and loans to public entities needing assistance to continue agricultural activities, provide public drinking water supplies, and aid in the survival of fish and wildlife; the rule also establishes criteria for leasing or buying water for fish.

Statutory Authority for Adoption: RCW 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: A drought emergency exists in the state. This emergency poses a potential threat to public health in its possible effects on drinking water supplies, and a potential threat to the general welfare of the public in its likely effects on irrigated agriculture and on those fish and wildlife which, in the judgement of federal and state authorities, are in danger of extinction.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 9, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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

April 19, 2001

Tom Fitzsimmons

Director

DROUGHT PREPAREDNESS FUNDING FOR AGRICULTURAL, MUNICIPAL AND UTILITY, AND FISH AND WILDLIFE NEEDS, AND FOR PURCHASING

AND LEASING WATER FOR FISH
NEW SECTION
WAC 173-167-010   Purpose.   The legislature in 1999 enacted Ch. 379, Laws of 1999, now codified as RCW 43.83B.430, which created, in part, the drought preparedness account and authorized the department of ecology to expend funds from that account for the purposes of drought preparedness. The purpose of this emergency rule is to establish criteria under which those funds can be made available to achieve the stated legislative purpose of drought preparedness.

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     (1) "Ecology" is the Washington state department of ecology.

     (2) "Normal water supply," for the purpose of eligibility for assistance under this chapter is:

     (a) That amount of water put to beneficial use during the irrigation season for the irrigation of one or more crops, using reasonably efficient practices, including reasonable conveyance losses, under a valid water right permit or certificate, or a supported registered water right claim; or

     (b) That amount or flow of water required for normal operations of fish hatchery, fish rearing, or fish passage facilities. Such facilities, where required by law, must be operating under a valid water right permit or certificate, or under a supported registered water right claim; or

     (c) The flow of water that is critically necessary to maintain instream habitat conditions for existing fish populations, as determined by ecology in concert with the state department of fish and wildlife.

     (3) "Previously established activities" include, but are not limited to:

     (a) The irrigation of a specified number of acres, using reasonably efficient practices, under a valid water right permit or certificate, or a supported registered water right claim.

     (b) The delivery of water by public entities through existing supply systems to present populations, areas, and/or facilities for purposes that are nonagricultural and not related to preservation or enhancement of fish or wildlife.

     (c) Those fish-management activities presently employed to maintain or restore the fish resource.

     (4) "Reasonably efficient practices" are those practices including, but not limited to, methods of conveyance, use, and disposal of water which are reasonable and appropriate under the circumstances to bring about water use efficiency as determined by an area-specific application of criteria identified by ecology, which may include, among others:

     (a) Efficient practices used in the area;

     (b) Standards of reasonable efficiency existing at the time the conveyance facilities were built;

     (c) Cost of improvements and impacts of the costs of upgrading facilities on the continued use of water by an appropriator;

     (d) Changes in water use practices and technology; and

     (e) Impact of alternative water use practices on other water uses, instream flows, and the environment.

     (5) "Supported registered water right claim" is a registered water right claim which includes sufficient evidence to allow ecology to make a tentative determination of the extent and validity of the claimed water right. Applications made for funding assistance under this chapter must incorporate, either by reference or inclusion, necessary information to enable ecology to make an informed determination with respect to the claim.

     (6) "Utility" means any publicly-owned drinking water supply system other than a municipality.

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     (1) Public bodies eligible to receive emergency funds are defined in RCW 43.83B.050 as "... the state of Washington, or any agency, political subdivision, taxing district, or municipal corporation thereof, an agency of the federal government, and those Indian tribes now or hereafter recognized as such by the federal government for participation in the federal land and water conservation program and which may constitutionally receive grants or loans from the state of Washington."

     (2) The public body applying for emergency funds must be receiving, or have been projected to receive, less than seventy-five percent of normal water supply, as the result of natural drought conditions, for the previously established activity for which they seek funding assistance, and must be experiencing, or expected to experience, undue hardship as a result.

     (3) Funding assistance will be for acquisition, construction, rehabilitation, and improvement of water supply facilities and for other appropriate measures to assure the adequate provision of drinking water to the citizens of the state, continuation of irrigated agriculture and the survival of the state's fish and wildlife resources, with particular emphasis on fish stocks or wildlife species which have been identified as threatened or endangered by the state department of fish and wildlife, the federal national marine fisheries service, or the federal fish and wildlife service.

     (4) Funding assistance will be available only for projects or measures undertaken in response to drought conditions and not to defray costs of normal water supply operations.

     (5) Funding assistance may be in the form of a grant or a combination loan and grant.

     (6) Grants, or combination loans and grants, may be used as matching funds in cases where federal, local, or other funds are also available.

     (7) Loans for agricultural water supply facilities shall be approved using the criteria set forth in WAC 173-170-080(6), Agricultural water supply facilities.

     (8) Funding assistance to alleviate drought conditions will be provided under the following formula:

     (a) No single entity will receive more than ten percent of the total funds available for drought relief. Should funds be available after July 1, 2001, ecology shall lift the cap restriction and make available additional funding consistent with the provisions of this section.

     (b) A combination loan and grant may be made for up to one hundred percent of total eligible project costs.

     (c) A grant or the grant portion of a combination loan and grant may be made for twenty percent of total eligible project costs if the public body being provided funds is receiving, or is forecast to receive, fifty-one to seventy-five percent of its normal seasonal water supplies.

     (d) The grant or grant portion of a combination loan and grant may be made for up to forty percent of total eligible project costs if the public body being provided funds is receiving, or is forecast to receive, fifty percent or less of normal seasonal water supplies.

     (e) A grant or the grant portion of a combination loan and grant may be amended to increase the grant up to forty percent of eligible project costs if drought conditions as defined in this chapter change after a grant has been signed for twenty percent of eligible project costs, provided:

     (i) That the grantee qualifies for the higher grant as defined in (d) of this subsection; and

     (ii) That the original grant agreement has not been terminated or closed out.

     (f) The grant or grant portion of a combination loan and grant, once signed by all parties, may not be reduced despite any subsequent improvement in water supply conditions.

     (9) Eligibility conditions for each proposed project or measure are:

     (a) The proposed project or measure must be for a beneficial use involving a previously established activity or purpose, except in the case of assistance provided for fish and wildlife.

     (b) The proposed project or measure must assist in alleviating a water shortage.

     (c) The public body receiving the grant or loan must satisfy ecology as to its ability to complete the project or measure.

     (d) The public body receiving a loan must satisfy ecology as to its ability to repay the loan.

     (e) Water derived from the project or measure must be put to beneficial use as a substitute for water not available because of a drought.

     (f) Water derived from the project or measure must not be used to irrigate new lands.

     (g) The proposed project or measure must not adversely affect existing rights, including both instream and out-of-stream rights.

     (h) All required permits and approvals for the proposed project or measure must be obtained by the applicant prior to a loan or grant agreement being signed.

     (10) Eligible measures that may be funded include the means for implementing water conservation procedures, acquiring alternate water sources, or transferring water rights, provided that the proposed measure represents an additional cost to the applicant as the result of drought conditions, and is not a substitute for normal water supply costs.

     (a) Types of eligible measures for implementing water conservation procedures include, but are not limited to:

     (i) Irrigation scheduling programs and activities, including the necessary personnel to accomplish such activities.

     (ii) Implementation of water reduction programs and activities, including the necessary personnel to accomplish such activities.

     (iii) Implementation of regional water conservation programs by multiple entities.

     (iv) Education programs.

     (b) Types of eligible measures for acquiring alternate water sources or transferring water rights include, but are not limited to:

     (i) Water purchase or leasing costs.

     (ii) Repair or replacement costs.

     (iii) Power costs.

     (11) Priority will be given to proposed projects which need additional water supplies. Need will be measured by:

     (a) The short-term and long-term effects, in the absence of drought relief, that the water shortage would have on agricultural crops, or on a municipality's or utility's ability to provide drinking water in its service area, or on the survival of fish or wildlife populations.

     (b) The capability and reliability of the proposed project to provide an emergency water supply to the applicant.

     (c) The percent of water shortage experienced or forecast for each applicant.

     (12) Priority will also be given to proposed measures which:

     (a) Are the most effective in achieving long-term reductions (conservation) in water requirements and/or which are the more efficient use of available supplies.

     (b) Present no, or minimal, overall environmental impacts, including any detrimental effects to wetlands. Any such impacts should be identified to the best extent possible by the applicant at the time of application.

     (13) Preference will be given to public bodies which are implementing activities in response to drought conditions which are in addition to the activities to be conducted with funding assistance applied for under this chapter; such activities may include, but are not limited to, water conservation plans, water system efficiency improvements, and other drought contingency actions.

     (14) A municipality or utility requesting funding assistance under this chapter must have developed and be following a water shortage response plan.

     (15) Ecology, and all state and local agencies that are affected by the proposed project or measure, in keeping with the emergency nature of these provisions, will process the respective application(s) and provide a decision(s) to the applicant in an expeditious manner.

     (16) To expedite the implementation of drought relief projects and measures, ecology can approve funding assistance without compliance with requirements for:

     (a) Notice of publication.

     (b) The State Environmental Policy Act.

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     (a) Pumps and accessories.

     (b) Discharge lines.

     (c) Pipelines.

     (d) Canals and laterals with control structures.

     (e) Lining of leaky canals.

     (f) Diversion structures.

     (g) Reregulating reservoirs.

     (h) Measuring devices.

     (i) Modifying an existing source or deepening an existing well.

     (j) Developing an emergency or alternate water source.

     (k) Replacement water sources, including purchasing or leasing water or water rights to be used during the drought period.

     (2) Local improvement districts (LIDs) may be formed to allow funding of on-farm water conservation projects. These projects may include, but are not limited to, conversion from rill to sprinkler or drip irrigation, conversion of sprinkler to drip irrigation, and construction of water reuse ponds.

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     (a) Modifying an existing source or deepening an existing well.

     (b) Developing an emergency or alternate water source.

     (c) Replacement water sources, including purchasing or leasing water or water rights to be used during the drought period.

     (d) Constructing an emergency intertie to another approved public water supply.

     (e) Transmission pipelines.

     (f) Diversion structures.

     (g) Pumps and accessories.

     (h) Source meters.

     (i) Leak detection and repair.

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     (a) Purchase and installation of water-reuse pumps.

     (b) Modifying hatchery intake and outlet structures.

     (c) Modifying stream channels adjacent to a hatchery to assure passage to the facility.

     (d) Provision and maintenance of oxygen levels in off-site holding ponds by purchase and installation of bottled gas (using air stones), or oxygen generation systems, or mechanical aeration.

     (2) Eligible projects that may be funded to protect instream fish habitat and assist in fish survival during drought conditions include, but are not limited to:

     (a) Augmentation of instream flows through transfers of diversionary surface and ground water rights.

     (b) Augmentation of instream flows through temporary withdrawals of ground waters.

     (c) Stream channel modification such as trenching, sandbagging, or berming to protect spawning gravels or to provide migratory channels for fish passage.

     (d) Capture and relocation of stranded fish.

     (e) Modification to existing wells and aeration towers.

     (f) Drilling new wells.

     (g) Installation and removal of temporary fish collection weirs.

     (3) The department of fish and wildlife and any potentially affected Indian tribes will be consulted to verify eligibility, needs, and nature of all proposed fish-related projects and measures.

     (4) Eligible projects that may be funded to protect aquatic and/or upland wildlife species and assist in fish survival during drought conditions include, but are not limited to:

     (a) Temporary diversion of stream flow to critical bird nesting habitat or wetland habitat populated by priority species, as identified by the state department of fish and wildlife.

     (b) Temporary impoundment of water in existing wetland habitat populated by priority species, as identified by the state department of fish and wildlife.

     (c) Temporary diversion of streamflow to upland watering devices.

     (d) Any diversion or impoundment of water described in (a) through (c) of this subsection shall be done in a manner that does not detrimentally affect fish populations listed under the federal endangered species act.

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     (2) Priority consideration for purchasing and leasing water rights will be given to water rights identified as being most likely to contribute to the survival of threatened or endangered fish stocks by the Washington department of fish and wildlife, potentially affected Indian tribes, and the federal national marine fisheries and fish and wildlife services. To the fullest possible extent, purchasing and leasing water rights will also be based on consideration of the following priorities:

     (a) The water right to be purchased or leased:

     (i) Has sufficient documentation to allow ecology to make a tentative determination as to its extent and validity;

     (ii) Has a sufficiently early priority date to ensure it will provide a benefit for restoring and protecting fish;

     (iii) Was put to use in the previous year;

     (iv) Will provide the relatively greatest benefit for restoring and protecting fish;

     (v) Will provide benefits in addition to restoring and protecting fish, such as meeting water quality requirements; and

     (vi) Is reasonably priced within the context of the local market for water.

     (b) Lease or purchase of the water right would:

     (i) Receive a broad level of support among interested parties;

     (ii) Be accomplished with partial funding from other sources;

     (iii) Require minimal administrative costs; and

     (iv) Would provide the longest possible period of benefit for fish.

     (3) Ecology will not purchase or lease:

     (a) Water rights for water which will not increase streamflow in the year 2001; or

     (b) Water rights which are subject to regulation to protect minimum flows established under chapter 90.22 RCW and chapter 173-500 WAC during the period for which ecology is seeking to enhance fish benefits.

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     (2) Copies of statutes and regulations cited in this chapter may be obtained from the ecology headquarters office at P.O. Box 47600, Olympia, WA 98504-7600, and on the internet at:

http://www.ecy.wa.gov/programs/wr/rules/rul-home.html.

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