PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 00-06-057.
Title of Rule: Requirements for measuring and reporting water use.
Purpose: Adopt new rule, chapter 173-173 WAC, establishing requirements for the measurement and reporting of water diversions and withdrawals. Repeal existing rule, chapter 508-64 WAC, regarding measuring devices for water diversion and withdrawal facilities.
Statutory Authority for Adoption: RCW 43.21A.080, 90.03.360, 90.44.050, [90.44.]250, [90.44.]450.
Statute Being Implemented: RCW 90.03.360, 90.44.050, [90.44.]250, [90.44.]450.
Summary: The proposed rule establishes requirements for measuring and reporting water use. The proposed rule describes standards of acceptability for devices and methods used to determine the rate and volume of water diversions and withdrawals; the proposed rule also establishes requirements for reporting the volume and rate of diversions and withdrawals.
Reasons Supporting Proposal: Because of legislative changes in 1993 to RCW 90.03.360, chapter 508-64 WAC, originally adopted in 1969, no longer conforms to the statute. As the result of litigation, the department has been ordered by Thurston County Superior Court to promulgate a revised rule implementing RCW 90.03.360.
Name of Agency Personnel Responsible for Drafting: Jeff Marti and Lynn Coleman, Olympia, (360) 407-6636/407-6738; Implementation: Joe Stohr, Olympia, (360) 407-6602; and Enforcement: Region Supervisors, Statewide, (360) 407-6000.
Name of Proponent: Washington Department of Ecology, Water Resources Program, governmental.
Rule is necessary because of state court decision, American Rivers, et al., v. Washington State Department of Ecology, Thurston County Superior Court, Civ. No. 99-2-00480-6.
Explanation of Rule, its Purpose, and Anticipated Effects: This rule establishes standards of acceptability for the measuring devices and methods used to determine the rate and volume of water diverted or withdrawn from the surface and groundwater of the state. It also contains requirements for the reporting of water use to be met if the department requires a water right owner to report the rate and volume of water diverted or withdrawn. This rule will replace an existing rule, chapter 508-64 WAC, which contains requirements for measuring devices for diversion and withdrawal facilities. As described in the small business economic impact statement below, this rule will require owners of water diversion and withdrawal facilities to incur costs as a result of designing, installing, maintaining and operating measurement devices and reporting water use data to the department. Water use data will improve the department's ability to make informed water management decisions, including determining whether water is available for appropriation and whether water users are in compliance with their water rights.
Proposal Changes the Following Existing Rules: This rule will replace chapter 508-64 WAC, Measuring devices for water diversion and withdrawal facilities, with proposed rule chapter 173-173 WAC, Requirements for measuring and reporting water use. The proposed rule is substantially changed from the existing rule: (1) It adds requirements for the measurement of open-channel diversions; (2) it adds requirements for the reporting of water use; (3) it removes language allowing the department to use discretion in determining who should be required to measure their water use; (4) it removes language requiring the department to notify water users when they must measure their water use; (5) it removes certain prescriptive language regarding measurement devices; and (6) it relaxes the accuracy requirements of measuring devices.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Background: This proposed rule arises out [of] two events. First, the Washington state legislature amended RCW 93.03.360 [90.03.360] in 1993 to mandate ecology to require metering or measuring of new surface water diversion rights with reporting of amounts diverted to ecology as appropriate. Ecology was also directed to require the measurement of existing diversion rights affecting waters in which salmonid stocks have been designated as depressed or critical, or where the diversion is greater than one cubic foot per second (cfs).
Second, a recent court decision (American Rivers v. Department of Ecology) and various findings and agreements subsequent to that decision have resulted in the following conclusions (among others):
(a) The existing rule (chapter 508-64 WAC) relating to measuring diversions and withdrawals is no longer adequate to implement the statutes to which it applies;
(b) Ecology must give implementation of the requirements of the 1993 legislation greater emphasis than has been the case in the past; and
(c) Groundwater withdrawals are subject to metering and reporting in cases where surface waters supporting depressed or critical fish stocks may be affected.
Given the above, ecology is undertaking the adoption of the proposed rule by December 31, 2001 and implementation of the court's additional directives, through an agreed upon implementation plan, in the sixteen basins deemed "salmon critical" by December 31, 2002.
Affected Industries: The proposed rule is not directed at a specific industry or industries. Rather, it affects all water users (present and future) who fall within the regulated population. Many of these are public sector entities (municipal water utilities, nonprofit water districts and companies, irrigation districts, etc.), and are beyond the scope of this analysis. The following list provides an illustrative, but not exhaustive, sample of the private sector business entities and individuals potentially regulated under this proposal.
| SIC Group | Industry | |
| 01-02 | Agriculture (irrigation, stock watering, etc.) | |
| 15 | Construction and property development (especially operative builders) | |
| 20 | Food processing | |
| 24 | Lumber and wood products | |
| 26 | Pulp, paper and paper products | |
| 28 | Chemicals | |
| 32 | Stone, clay, and glass, and concrete products |
Small versus Large Business Impacts: The information underlying the results displayed below includes the following:
| • | Water resources program staff compiled cost estimates for metering and measuring both open channel and pipeflow diversions and withdrawals at various levels. These included both installed capital costs and annual operation and maintenance (including recording and reporting) costs for two common types of measuring devices. |
| • | Installed capital costs were amortized over the design life of each technology or system examined in order to provide comparability and combined with the operation and maintenance costs. A real discount rate of 3.6 percent was used for the analysis.1 |
| • | Information provided by the Washington State Department of Employment Security was used to allocate Washington firms in the industry groups listed above to small versus large business groupings. Data published in the 2001 edition of the Almanac of Business and Industrial Financial Ratios was used to estimate average revenues for small and large business. |
| • | The impacts of the amortized costs of the metering and measuring devices and systems were calculated per $100 of revenue as shown in the table below.2 The estimated impacts are generally disproportionate with respect to small businesses, but are not large relative to revenues in either case. |
| COSTS PER $100 OF REVENUE (2001 DOLLARS) | ||||
| OPEN CHANNEL | ||||
| SIC Group | Small Businesses | Large Businesses | ||
| 01-02 | $0.07 | $0.005 | ||
| 15 | 0.06 | 0.0002 | ||
| 20 | 0.02 | 0.0005 | ||
| 24 | 0.10 | 0.004 | ||
| 26 | 0.11 | 0.0004 | ||
| 28 | 0.07 | 0.0003 | ||
| 32 | 0.02 | 0.002 | ||
| PIPEFLOW | ||||
| SIC Group | Small Businesses | Large Businesses | ||
| 01-02 | $0.06 | $0.003 | ||
| 15 | 0.05 | 0.0001 | ||
| 20 | 0.01 | 0.0002 | ||
| 24 | 0.08 | 0.002 | ||
| 26 | 0.08 | 0.0002 | ||
| 28 | 0.06 | 0.0001 | ||
| 32 | 0.02 | 0.0009 | ||
1. Performance Standards - The proposed rule includes standards for the accuracy of metering/measuring devices or systems (WAC 173-173-100 and 173-173-130), but does not require specific technologies or systems. Thus, each regulated entity is free to choose devices or systems on the basis of efficiency and/or cost.
2. Frequency and Timing of Recording and Reporting - Entities diverting or withdrawing smaller volumes of water are required to record and report their data less frequently than those utilizing larger quantities of water. Their reporting deadline is also delayed compared with larger entities (WAC 173-173-060). This analysis assumes that the quantity of water diverted or withdrawn is directly correlated with the size of business entities.
3. Indirect and Alternative Measurement - Subject to approval by ecology, regulated entities may use measuring methods not requiring meters or other physical devices. One such method, estimation based on power consumption, is specified in section 16. Others may be available and used if approved by ecology (WAC 173-173-170).
4. Alternative Recording and Reporting - The proposed rule requires reporting using an ecology-specified format. However, provision is also made for alternative reporting formats and recording/reporting requirements based on existing water rights, alternatives proposed by regulated entities, and case-by-case considerations, subject to ecology approval (WAC 173-173-060, 173-173-070, and 173-173-080).
5. Financial Assistance - The Washington state legislature appropriated $3.4 million for water measuring devices and gauges during the 2002-2003 biennium. Discussion is currently ongoing as to the legality of use of these monies to assist in funding water measuring devices and the appropriate financial split between measuring devices and stream gauges. Priority is to be given to areas participating in the Washington State Department of Fish and Wildlife fish screens and cooperative compliance programs. At this writing, only one area in the state has a cooperative compliance program in place. However, participation in additional areas is anticipated in the near future.
Impacts on Revenues or Sales: Since compliance cost impacts are measured on the basis of sales, this topic has already been addressed. Based on the estimates developed for this analysis, it does not appear that significant revenue/sales impacts are likely to occur. However, in the event that such impacts do occur in specific cases, opportunities for mitigation have been provided as described above.
Involvement of Small Businesses: Opportunities for involvement of small businesses in the rule development process have been and will be afforded in the following ways:
| • | A technical advisory committee, including representatives from businesses and organizations representing businesses was formed and met from June through December 2001. |
| • | An informal review draft of the proposed rule was released via the Internet for review and comment by interested parties in May 2001. |
| • | Presentations regarding the rule as well as meetings with water user groups were offered throughout the process. |
1 This is a fair representation of the interest rates on medium and long-term inflation-indexed United States Treasury securities as of July 9,
2001.
2 It was assumed that the size of the diversion or withdrawal, and, hence the costs of metering or measuring it, is correlated with the size of business.
A copy of the statement may be obtained by writing to Bill Bafus, Department of Ecology, mailing address P.O. Box 47600, Olympia, WA 98504-7600, physical address 300 Desmond Drive, Lacey, WA 98503, phone (360) 407-6939, fax (360) 407-6989.
RCW 34.05.328 applies to this rule adoption. A "significant legislative rule" is a rule other than a procedural or interpretive rule that (a) adopts substantive provisions of law pursuant to delegated legislative authority, the violation of which subjects a violator of such rule to a penalty or sanction; (b) establishes, alters, or revokes any qualification or standard for the issuance, suspension, or revocation of a license or permit; or (c) adopts a new, or makes significant amendments to, a policy or regulatory program. Because the proposal rule includes provisions of the kind identified in (a) through (c) above, it constitutes a significant legislative rule.
Hearing Location: Tacoma Public Utilities, Auditorium, 3628 South 35th Street, Tacoma, on September 4, at 7:00 p.m.; at the Whatcom County Council Chambers, County Courthouse, 311 Grand Avenue, Bellingham, on September 5, at 7:00 p.m.; at the Walla Walla Region Airport, Community Meeting Room, Exit off Highway 12, Walla Walla, on September 11, at 7:00 p.m.; at the Davis High School, Kiva, 212 6th Avenue, Yakima, on September 12, at 7:00 p.m.; at the Chelan County PUD Auditorium, 327 North Wenatchee Avenue, Wenatchee, on September 13, at 7:00 p.m.; and at the Guy Cole Convention Center, Carrie Blake Park, Sequim, on September 17, at 7:00 p.m.
Assistance for Persons with Disabilities: Contact Christine Corrigan, (360) 407-6607, by August 15, 2001, TDD (360) 407-6066.
Submit Written Comments to: Department of Ecology, Water Resources Program, Attn: Jeff Marti, P.O. Box 47600, Olympia, WA 98504-7600, or e-mail comments to metering@ecy.wa.gov, fax (360) 407-6574. All comments must be received by 5:00 p.m. on September 24, 2001.
Date of Intended Adoption: December 3, 2001.
July 27, 2001
Linda Hoffman
Deputy Director
OTS-5041.2
REQUIREMENTS FOR MEASURING AND REPORTING WATER USE
(2) All measuring devices or measuring methods required to be installed under this chapter must conform to requirements for measuring devices and methods described in this chapter, or other method(s) approved by the department.
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(2) RCW 90.03.360 also directs the department to require metering or measurement by other approved methods as a condition for all previously existing water rights or claims if:
(a) The diversion or withdrawal is from waters in which the salmonid stock status is depressed or critical, as determined by the Washington department of fish and wildlife; or
(b) The volume of the surface water diversion exceeds one cubic foot per second.
(3) RCW 90.44.050, 90.44.250 and 90.44.450 give the department authority to require that ground water withdrawals are measured, and to require that information about the amount of water being withdrawn be reported to the department.
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(2) "Approved measuring method" means a procedure approved by the department, which, when used with an approved measuring device (if applicable), will allow for an accurate computation of flow rate.
(3) "Control" means a feature that determines the stage-discharge relation. This feature may be a natural constriction of the channel, an artificial structure, or a uniform cross section over a long reach of the channel.
(4) "Cfs" means cubic feet per second.
(5) "Controlling work" means a device or structure used for diverting, withdrawing, pumping, impounding, storing, measuring, piping, conserving, conveying, confining or using water.
(6) "Department" means the department of ecology.
(7) "Flow rate" means the volume of water that passes through a specific cross section of a pipe or open channel in a specified period of time.
(8) "Gpm" means gallons per minute.
(9) "Open channel flow" means water moving though a canal, flume, ditch, or other unenclosed conduit, and may include flow in a pipe if the pipe is not full and is not under pressure.
(10) "Pipeflow" means water moving through a closed conduit under pressure.
(11) "Rated section" means a cross-section of a stream, river or ditch where a unique relationship between the stage and flow has been determined.
(12) "Rating curve" means the relationship between stage and flow in a rated stream section.
(13) "Responsible party" means an owner, manager, person or other entity required by RCW 90.03.360, 90.44.050, 90.44.250 and 90.44.450, or by a permit, rule, or order issued pursuant to these laws, to use a measuring device or method approved by the department.
(14) "Stage" means the elevation of a water surface in relation to a datum or reference point.
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(1) Any owner or owners of any water diversion are required by state law (RCW 90.06.360) to measure and regulate their water use.
(2) The department must enforce the requirement to measure water use for the following types of water use:
(a) All new surface water permits;
(b) New and existing water rights where the diversion or withdrawal of any volume of water is from waters containing depressed or critical fish stock; and
(c) Existing surface water rights where the diversion volume exceeds one cubic foot per second.
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(2) If a responsible party is required to report information regarding water use, the report must be submitted on a form or in a format prescribed by the department and must include such information as requested by the department. The department may require that the information be submitted in writing or electronically. This information may include, but is not limited to, the following:
(a) The name, address and telephone number of the responsible party;
(b) The location of the point(s) of diversion or withdrawal, the place(s) of use and metering site(s);
(c) The county parcel identification number for the point(s) of diversion or withdrawal, and place(s) of use or area served by the diversion or withdrawal, except that municipalities, public water supply systems and irrigation districts shall not be required to provide parcel identification numbers for their customers, members and secondary users.
(d) The water right number(s) or claim number(s) that indicate the legal basis for the diversion or withdrawal;
(e) The volume or rate of waters diverted or withdrawn, preferably as measured in cubic feet per second, gallons per minute or acre-feet per year.
(f) The maximum instantaneous quantity of water diverted or withdrawn for the reporting period as provided for in WAC 173-173-060;
(g) The make, model and serial number of the measuring device(s) and any separable counting units;
(h) The date the device was last calibrated;
(i) Any date(s) during which the meter or measuring device was not functioning properly;
(j) For flow data based upon power consumption, electrical records, pump test data, or other data necessary to verify flow estimates;
(k) Whether the intake structure for the diversion has a screen or screens installed to prevent the entry of fish into the diversion works or pump facilities;
(l) The water source name;
(m) For public water systems, the public water system identification number assigned by the department of health.
(3) All responsible parties must notify the department of a change in address or change in ownership of water rights.
(4) All responsible parties must attest that the information provided is true and correct to the best of their knowledge.
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(2) The following requirements to measure and report water
use, when the department so requires, shall apply to users who
divert or withdraw water.
| Average diversion rate in gallons per minute | <10 gpm | 10-50 gpm | >50-200 | >200 gpm |
| Recording frequency | Monthly | Weekly | Weekly | Daily |
| Maximum instantaneous flow | Maximum instantaneous flow | |||
| Volume or rate to report | Maximum instantaneous flow | Maximum instantaneous flow | Annual total volume | Annual total volume |
| Annual total volume | Annual total volume | Mean daily flow for each month | Mean daily flow for each month | |
| Date data must be reported to department | By Mar 31 of the following calendar year | By Feb 28 of the following calendar year | By Jan 31 of the following calendar year | By Jan 31 of the following calendar year |
| Monthly = Calendar month | ||||
| Weekly = Monday 12:01 a.m. to Sunday 12:00 p.m. | ||||
| Daily = 12:01 a.m. to 12:00 p.m. | ||||
| 1 gallon per minute is equivalent to .002 cubic feet per second | ||||
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(a) Verify water rights compliance;
(b) Determine the availability of water for further appropriation;
(c) Conduct hydrologic studies;
(d) Implement the recommendation of a watershed planning group.
(2) The department shall not modify the reporting requirements on a case-by-base basis unless it has provided a written justification and notification to the responsible party.
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(a) A measuring device or facility is being repaired according to the requirements of subsection (2) or (3) of this section; and
(b) The responsible party uses a substitute measuring device or other method to measure the diversion or withdrawal or to provide a reasonable estimate thereof.
(2) Upon discovery of a malfunctioning measuring device or facility, the responsible party shall repair the device or facility and make them operable as soon as possible.
(3) The department may order that a measuring device or facility be repaired or replaced within a specified time period.
(4) Measuring devices and facilities must register and be calibrated for the full range of discharge from the diversion for which they are to be used.
(5) On an open channel diversion, all flow diverted shall be measured as close to the point of diversion as possible.
(6) There shall be no turnouts or diversions between the source of water and the measuring devices and facilities, except for faucets or other similar small outlets that have a de minimis effect on the diversion or withdrawal.
(7) In those cases where wells are authorized for the purpose of supplementing surface waters with water from combined sources, both sources of water shall be metered.
(8) In the case of intermittent artesian wells, the meter shall be installed in a manner that will measure both pumped and flowing discharge.
(9) Authorized employees of the department shall have access to the measuring devices and facilities if the department has given reasonable notice to the property owner.
(10) The department may modify the required degree of measurement accuracies provided for in WAC 173-173-100(2) or 173-173-130(1) when it determines that a different degree of measurement accuracy is appropriate for the purpose for which the data is being collected. A responsible party may request a change in the default accuracies listed in WAC 173-173-100(2) or 173-173-130(1) and the department shall determine if the change is appropriate. All such requests or any department determinations concerning a change to the default accuracy shall be in writing.
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(2) At any rate of flow measured by the measuring system; i.e., meter plus any secondary equipment such as data recorders; the system shall register not less than ninety percent, nor more than one hundred ten percent, of the water actually passing through the system.
(3) The department may modify the required degree of measurement precision when it determines that a different degree of measurement precision is appropriate for the purpose for which the data is being collected. A responsible party may request a change in the default accuracy listed in subsections (1) and (2) of this section and the department shall make a determination if the change is appropriate. All such requests or any department determinations concerning a change to the default accuracy shall be in writing.
(4) The meter shall have a visual, mechanical, or digital totalizer or the facility should be capable of totalizing flow. The totalizer shall contain sufficient recording digits to ensure that "roll over" to zero does not occur within one year.
(5) The department may require that the measuring device be capable of indicating instantaneous discharge.
(6) For other conditions necessary to ensure accurate and precise measurement data, the selection, installation and maintenance of measuring devices by water users shall be guided by generally accepted industry standards, such as the American Water Works Association standards and information from the manufacturer. These standards also shall be used by the department in making decisions as to the appropriate selection, installation, operation and maintenance of measuring devices acceptable under this rule.
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(1) The meter shall be installed in accordance with manufacturer specifications.
(2) There shall be a full pipe of water at all times when water is being withdrawn.
(3) The meter shall not be installed in a manner that creates an uneven velocity profile. Straight sections of pipe before and after the meter, straightening vanes or other flow conditioning devices shall be used to provide even flow through the meter as necessary.
(4) Meters shall be installed in such a manner as to allow for easy removal and testing of the meter in accordance with the manufacturer's specifications.
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(2) Meters shall be field or shop calibrated, as specified by the manufacturer. Meters also shall be field or shop calibrated if they are obviously over or under registering. For certain nonmechanical meters, system diagnostics may substitute for physical calibration of the meter.
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(1) At any rate of flow measured by the measuring system; i.e., the measuring device plus any secondary equipment such as data recorders; the system shall register not less than ninety percent, nor more than one hundred ten percent, of the water actually passing through the system.
(2) In determining a stage-discharge relation for these devices, the distribution of open channel flow measurements shall be sufficient to establish a full range of values for the entire stage-discharge relation.
(3) For other conditions necessary to ensure accurate and precise data, generally accepted industry standards, such as those in the U.S. Bureau of Reclamation "Water Measurement Manual, Third Edition" and information from the manufacturer or designer, shall guide the selection, installation, and maintenance of measuring devices and facilities by water users. The department also shall use these standards in evaluating the selection, installation, operation and maintenance of a measuring system.
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(2) The department may modify the required frequency for the recalculation of rating curves when it determines an alternative frequency would be adequate for the purposes of data collection. A responsible party may request a change in the default frequency listed in WAC 173-173-150(1) and the department shall make a determination if the change is appropriate. All such requests or any department determinations concerning a change to the default frequency shall be in writing.
(3) If the measuring system has no continuous stage recorder, an observer shall read the staff gage and record the reading as close in time as is practical before and after changes in regulation of flow occur.
(4) Measuring facilities shall be operated and maintained to ensure that discharge can be measured reliably and accurately.
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(1) Use of the method is approved in writing by the department;
(2) A power meter is dedicated to one pump only;
(3) The ratio between power consumption and flow is evaluated at some time during the first year of use and every three years subsequent using a field pump test; and
(4) The pump test shall be conducted for a minimum duration of two hours and shall be conducted under normal operating conditions.
(5) This method shall not be used for flowing artesian wells.
(6) For the first year, the following equation may be used to estimate water volume diverted. This equation may also be used to estimate flow during short periods of meter repair or maintenance:
| (KWH)(1.34HP/KW)(Pumpeff.)(Motoreff.)(3960) | |
| Q = | |
| TDH |
KWH = kilowatt hours used (from power records);
Pumpeff. = efficiency of pump (40-85%);
Motoreff. = motor efficiency (75-92%);
3960 = conversion factor, horsepower for lifting water (1 HP = 33,000 ft-lb/sec and a gallon of water weighs approximately 8.3 lb, therefore 33,000 divided by 8.3 = 3960); and
TDH = Total dynamic head = total elevation gain from water source level to pump to place of use plus discharge pressure of pump (in feet) plus friction losses.
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(1) The method is approved in writing in advance by the department; and
(2) The device(s) and installation are certified by a registered professional engineer to:
(a) Measure all flow diverted or withdrawn in accordance with the pipeflow or open channel accuracy requirements in WAC 173-173-100(2) and 173-173-130(1);
(b) Measure the appropriate volumes and rates in WAC 173-173-060;
(c) Be installed according to the manufacturer's or designer's instructions.
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OTS-5051.1
REPEALER
The following chapter of the Washington Administrative Code is repealed:
| WAC 508-64-010 | Background and purpose of regulation. |
| WAC 508-64-020 | Meter specifications. |
| WAC 508-64-030 | Meter installation requirements. |
| WAC 508-64-040 | Meter operation and maintenance. |
| WAC 508-64-050 | Meter -- When required. |
| WAC 508-64-060 | Unauthorized diversion or withdrawals -- Enforcement agent. |
| WAC 508-64-070 | Appeals. |
| WAC 508-64-080 | Regulation review. |