WSR 05-06-116



[ Order 05-06 -- Filed March 2, 2005, 11:27 a.m. ]

     Subject of Possible Rule Making: This rule making will create chapter 173-528 WAC, Salmon-Washougal instream resources protection and water management program. Instream flows will be proposed for the Washougal River, and Salmon, Burnt Bridge, and Lacamas creeks. Instream flows may also be proposed for a number of other tributaries within the watershed where habitat studies exist. The rule language will provide for mitigation of any new water rights or water right transfers, as well as optional ways to secure water via water banking, aquifer storage and recovery, and others. A maximum net quantity of water will be available for appropriation from streams within the watershed when flows in these streams exceed the instream flows set in rule. Finally, a reserve amount of ground water for each subbasin and county will be available for future use.

     Statutes Authorizing the Agency to Adopt Rules on this Subject: Several statutes provide the current impetus for action to achieve and protect stream flows:

The Watershed Planning Act (RCW 90.82.080) directs the department to undertake rule making to adopt instream flows recommended by the planning unit.
The 1917 Water Code Act (chapter 90.03 RCW) and the minimum water flows and levels (chapter 90.22 RCW) give ecology authority to establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife, or recreational or aesthetic values.
The Water Resources Act of 1971, chapter 90.54 RCW, especially RCW 90.54.020 and 90.54.050(1), are the basis for protecting and preserving instream resources, providing uninterruptible supply of water, and sets the authority to set aside/reserve water for future uses.
Regulation of public ground waters (chapter 90.44 RCW) sets forth the exemption from permit application, and requires protection of surface water from any ground water withdrawals in hydraulic continuity with those surface waters.
Water well construction (chapter 18.104 RCW) gives ecology the authority to regulate the design and construction of wells.
Water resource management (chapter 90.42 RCW) creates a voluntary mechanism to acquire water rights that can be transferred to the trust water rights program for instream purposes.

     Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: Water resources inventory area (WRIA) 28 is located in southwest Washington state and comprises portions of Clark and Skamania counties. A variety of needs must be met by surface and ground waters in this region of the state. Just as water supply for people is growing in demand, instream flows throughout the watershed are vital for fish and wildlife species. Local streams provide habitat for fish species that have recently been listed under the federal Endangered Species Act (ESA).

ESA Status of Listed Fish Species in WRIA 28

Spring and Fall Chinook "Threatened" March 24, 1999
Coho "Candidate" July 14, 1997
Summer and Winter Steelhead "Threatened" March 19, 1998
Chum "Threatened" March 25, 1999
Bull Trout "Threatened" June 10, 1998

     Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: Each watershed planning unit that elected to make instream flow recommendations is essentially an advisory group to ecology for setting instream flows. Chapter 90.82 RCW allows local planning units, of which ecology is an active partner, to develop and recommend instream flows, with ecology having authority to convert those recommendations into rule.

     Furthermore, per RCW 90.03.247, the department will consult with the affected tribes in the Lewis watershed, other state departments, and appropriate federal agencies.

     Process for Developing New Rule: Ecology will hold at least one open house prior to filing the CR-102 and proposed rule language. A focus sheet, web page, and public notice will be developed to explain the elements of the proposed rule and announce the date(s) of the open house(s). A press release, mailing and e-mail will be used to distribute the information. At the open house(s), staff will be available to discuss the proposal and answer questions. Informational displays and handouts will also be available.

     Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Kathleen Ensenat, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, (360) 407-6780,, fax (360) 407-6574; or Scott McKinney, Department of Ecology, SWRD, Shorelands and Environmental Assistance Program, P.O. Box 47775, Olympia, WA 98504-7775, (360) 407-6389,, fax (360) 407-6574.

     For the latest updates on water resources issues, including the Lewis watershed rule-making process, sign up for the department of ecology water resources e-mail list at or check out the water resources website at

March 1, 2005

Joe Stohr

Program Manager

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