EMERGENCY RULES
Purpose: The new emergency rules are to establish criteria under which ecology would disburse funds appropriated for drought relief. The proposed rule establishes four general categories for funding: Public agricultural water supplies, drinking water supplies, fish and wildlife resources, and leases and purchases of water rights to mitigate for the impacts of emergency ground water permits and transfers on fisheries resources in the Yakima River basin.
Statutory Authority for Adoption: Section 947 of the 2005-07 capital budget bill, ESSB 6094, requires that ecology establish general criteria for the distribution of $8,200,000 in funds appropriated for drought relief. Ecology has rule-making authority for all drought-related activities, including funding, under RCW 43.83B.400 and [43.83B.]420.
Other Authority: Ecology has general rule-making authority under RCW 43.21A.080 and 43.27A.090.
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: These rules establish criteria for the disbursement of funds for emergency drought relief. The needs for funding are immediate and to employ the standard rule-making process would prevent the funds from becoming available to those in need in time for the water-short summer months.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 31, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 31, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: May 26, 2005.
Jay J. Manning
Director
OTS-8106.3
EMERGENCY DROUGHT FUNDING
DROUGHT FUNDING -- GENERAL CRITERIA
NEW SECTION
WAC 173-167-010
Funding availability to public bodies.
Ecology may provide funding to public bodies in connection
with projects and measures designed to alleviate drought
conditions which may affect public health and safety,
including, but not limited to, conditions affecting drinking
water supplies, agricultural activities, and survival of fish
and wildlife.
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(1) $3,350,000 is available for use to alleviate drought conditions for public agricultural water supplies.
(2) $2,350,000 is available for use to alleviate drought conditions affecting drinking water supply facilities and utilities.
(3) $1,000,000 is available for use to alleviate the effects of drought conditions on the state's fish and wildlife resources.
(4) $1,500,000 is available for use to lease and purchase water rights to mitigate for the impacts of emergency ground water permits and transfers on fisheries resources in the Yakima basin.
(5) Funding will be made available to meet both immediate and future needs.
(6) Ecology will periodically reassess, and if necessary redistribute, the amount of funds available in each of the above categories to assure that the most pressing needs are effectively addressed.
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(1) Adequate provision of drinking water to the citizens of the state;
(2) Continuation of irrigated agriculture in the state; or
(3) 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.
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PART IIFUNDING FOR AGRICULTURAL PROJECTS
NEW SECTION
WAC 173-167-100
Funding conditions.
Eligibility
conditions for each proposed project or measure to alleviate
drought conditions for public agricultural water supplies are:
(1) The proposed project or measure must be for a beneficial use of water involving a previously established activity or purpose.
(2) The proposed project or measure must assist in alleviating a water shortage.
(3) A public body eligible for funding shall initially be entitled to a grant of no more than ten percent of funds available for that general category of activities listed under WAC 173-167-020(1).
(4) A public body receiving a grant may receive additional funding in the form of a loan in the amount of no more than an additional ten percent of funds available for that general category of activities listed under WAC 173-167-020(1).
(5) A public body receiving a grant or loan must satisfy ecology as to its ability to complete the project or measure in a timely manner.
(6) A public body receiving a loan must satisfy ecology as to its ability to repay the loan in a timely manner.
(7) Priority will be given to a project or measure that provides matching funds from other state, local, or federal sources.
(8) Water derived from the project or measure must be put to beneficial use as a substitute for water not available because of a drought.
(9) Water derived from the project or measure must not be used to irrigate new lands.
(10) The proposed project or measure must not adversely impair existing rights, including both instream and out-of-stream rights.
(11) 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.
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(1) Irrigation scheduling programs and activities, including the necessary personnel to accomplish such activities;
(2) Implementation of water reduction programs and activities, including the necessary personnel to accomplish such activities;
(3) Implementation of regional water conservation programs by multiple entities;
(4) Education programs.
Types of eligible measures for acquiring alternate water sources or temporarily transferring water rights include, but are not limited to:
(a) Water purchase or leasing costs;
(b) Repair or replacement costs;
(c) Power costs.
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(1) The short-term and long-term effects, in the absence of drought relief, that the water shortage would have on agricultural crops or livestock operations.
(2) The capability and reliability of the proposed project to provide an emergency water supply to the applicant.
(3) The percent of water shortage experienced or forecast for each applicant.
Priority will also be given to proposed measures which:
(a) Are the most effective in achieving long-term reductions (conservation) in water requirements, represent the more efficient use of available supplies, and will address shortages that pose the greatest economic hardship.
(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.
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(1) Notice of publication;
(2) The State Environmental Policy Act; and
(3) Competitive bidding requirements.
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(1) Pumps and accessories.
(2) Discharge lines.
(3) Pipelines.
(4) Canals and laterals with control structures.
(5) Lining of leaky canals.
(6) Diversion structures.
(7) Reregulating reservoirs.
(8) Measuring devices.
(9) Modifying an existing source or deepening an existing well.
(10) Developing an emergency or alternate water source.
(11) Replacement water sources, including purchasing or leasing water or water rights to be used during the drought period.
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Ray Newkirk
Washington State Department of Ecology
P.O. Box 47600
Olympia, WA 98504-7600
360-407-6630
rnew461@ecy.wa.gov
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PART IIIFUNDING FOR DRINKING WATER SUPPLY PROJECTS
NEW SECTION
WAC 173-167-200
Funding conditions.
Eligibility
conditions for each proposed project or measure to alleviate
drought conditions for drinking water supplies are:
(1) The body applying for funding must be a public body as defined in WAC 173-167-010(3). The proposed project or measure must be for a beneficial use of water involving a previously established activity or purpose.
(2) The proposed project or measure must assist in alleviating a water shortage.
(3) A public body eligible for funding shall initially be entitled to a grant of no more than ten percent of funds available for that general category of activities listed under WAC 173-167-020(2).
(4) A public body receiving a grant may receive additional funding in the form of a loan in the amount of no more than an additional ten percent of funds available for that general category of activities listed under WAC 173-167-020(2).
(5) A public body receiving a grant or loan must satisfy ecology as to its ability to complete the project or measure in a timely manner.
(6) A public body receiving a loan must satisfy ecology as to its ability to repay the loan in a timely manner.
(7) Priority will be given to a project or measure that provides matching funds from other state, local, or federal sources.
(8) Water derived from the project or measure must be put to beneficial use as a substitute for water not available because of a drought.
(9) The proposed project or measure must not adversely impair existing rights, including both instream and out-of-stream rights.
(10) 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.
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(1) Implementation of water reduction programs and activities, including the necessary personnel to accomplish such activities.
(2) Implementation of regional drought-related water conservation programs by multiple entities.
(3) Drought-related education programs.
Types of eligible measures for acquiring alternate water sources or temporarily transferring water rights include, but are not limited to:
(a) Water purchase or leasing costs.
(b) Repair or replacement costs.
(c) Power costs.
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(1) The short-term and long-term effects, in the absence of drought relief, that the water shortage would have 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.
(2) The capability and reliability of the proposed project to provide an emergency water supply to the applicant.
(3) The percent of water shortage experienced or forecast for each applicant for funding assistance.
Priority will also be given to proposed measures which:
(a) Are the most effective in achieving long-term reductions (conservation) in water use and/or which promote 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.
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Any water system requesting funding under this section must have developed and be following a water shortage response plan or must develop a plan concurrently with the implementation of the funded project.
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(1) Notice of publication;
(2) The State Environmental Policy Act; and
(3) Competitive bidding requirements.
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(1) Modifying an existing source or deepening an existing well.
(2) Developing an emergency or alternate water source.
(3) Replacement water sources, including purchasing or leasing water or water rights to be used during the drought period.
(4) Constructing an emergency intertie to another approved public water supply.
(5) Transmission pipelines.
(6) Diversion structures.
(7) Pumps and accessories.
(8) Source meters.
(9) Leak detection and repair.
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Ray Newkirk
Washington State Department of Ecology
P.O. Box 47600
Olympia, WA 98504-7600
360-407-6630
rnew461@ecy.wa.gov
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PART IVFUNDING FOR FISH AND WILDLIFE PROJECTS
NEW SECTION
WAC 173-167-300
Funding conditions.
Agreements to
provide funding assistance for fish and wildlife projects to
alleviate drought conditions may be made for one hundred
percent of total eligible project costs.
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(1) Purchase and installation of water-reuse pumps;
(2) Modifying hatchery intake and outlet structures;
(3) Modifying stream channels adjacent to a hatchery to assure passage to the facility;
(4) Provision and maintenance of oxygen levels in on-site and off-site ponds by purchase and installation of bottled gas (using air stones), or oxygen generation systems, or mechanical aeration;
(5) Modification to existing wells and aeration towers;
(6) Costs associated with emergency well operations (e.g., pumping, installation, maintenance);
(7) Drilling new wells; and
(8) Costs associated with fish releases or fish transfers to protect fish growth, health, and survival.
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(1) Augmentation of instream flows through temporary transfers of diversionary surface and ground water rights.
(2) Augmentation of instream flows through temporary withdrawals of ground waters.
(3) Stream channel modification such as trenching, sandbagging, or berming to protect spawning gravels or to provide migratory channels for fish passage.
(4) Capture and relocation of stranded fish.
(5) Installation, operation, and removal of temporary fish collection facilities (weirs, existing fish-ways, etc.) and relocation of collected fish in up or downstream areas.
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(1) Temporary diversion of streamflow to critical bird nesting habitat or wetland habitat populated by priority species, as identified by the state department of fish and wildlife.
(2) Temporary impoundment of water in existing wetland habitat populated by priority species, as identified by the state department of fish and wildlife.
(3) Temporary diversion of streamflow to upland watering devices.
(4) Any diversion or impoundment of water described in subsections (1) through (3) of this section shall be done in a manner that does not detrimentally affect fish populations listed under the federal Endangered Species Act.
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Dave Burdick
Washington State Department of Ecology
P.O. Box 47600
Olympia, WA 98504-7600
360-407-6094
dbur461@ecy.wa.gov
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PART VFUNDING FOR BUYING OR LEASING WATER FOR FISH
NEW SECTION
WAC 173-167-400
Funding conditions.
Funding assistance
for water right lease, purchase, and mitigation agreements to
alleviate drought conditions will be provided under the
following conditions:
(1) Agreements may be made for one hundred percent of total eligible project costs.
(2) Lease and purchase agreements will be made at a negotiated market price between ecology and willing sellers.
(3) Mitigation agreements will be made at agreed-upon rates negotiated by ecology and other affected entities for the impacts of emergency ground water permits and water transfers. The purpose for the agreements will be to secure water leases or purchases that may be used for in-place, in-time mitigation or, where water is not reasonably available, alternatives to acquire water that will provide equal or greater upstream ecological benefits.
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The water right to be purchased or leased:
(1) Has sufficient documentation to allow ecology to make a tentative determination as to its extent and validity;
(2) Has a sufficiently early priority date to ensure it will provide a benefit for restoring and protecting fish;
(3) Was put to use in the previous year;
(4) Will provide the relatively greatest benefit for restoring and protecting fish;
(5) Will provide benefits in addition to restoring and protecting fish, such as meeting water quality requirements; and
(6) Is reasonably priced within the context of the local market for water.
Lease or purchase of the water right would:
(a) Receive a broad level of support among interested parties;
(b) Be accomplished with partial funding from other sources;
(c) Require minimal administrative costs; and
(d) Would provide the longest possible period of benefit for fish.
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(1) Water rights for water which cannot be used to increase streamflow in the year 2005, unless otherwise specified in other mitigation agreements;
(2) Water rights which are subject to regulation to protect minimum flows established under chapters 90.22 RCW and 173-500 WAC during the period for which ecology is seeking to enhance fish benefits.
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Dave Burdick
Washington State Department of Ecology
P.O. Box 47600
Olympia, WA 98504-7600
360-407-6094
dbur461@ecy.wa.gov
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