WAC 173-503-060   Future water rights.  (1) Surface and ground water rights, including permit exempt uses under RCW 90.44.050, may be obtained that are not subject to the instream flows established in WAC 173-503-040 and closures established in WAC 173-503-051 if all statutory requirements are met and if any of the following situations apply:

     (a) The proposed use is nonconsumptive, and compatible with the intent of this chapter.

     (b) The water use qualifies for the reservations established in this chapter. The proposed use from the reservation must be consistent with all the conditions outlined in WAC 173-503-073, 173-503-074 and 173-503-075. The department shall deduct the water use from its record of water available from the reservations as described in WAC 173-503-073 and 173-503-075.

     (c) The applicant or governmental agency elects to submit a scientifically sound mitigation plan and it is approved by the department. A mitigation plan can be submitted to mitigate for an individual withdrawal or to mitigate for multiple withdrawals in a subbasin. A mitigation plan may be approved if the proponent can demonstrate to the department's satisfaction that when the mitigation is implemented the proposed withdrawal(s) will not impair senior water rights, including instream flow rights, adversely impact instream resources, or diminish water quality. An approved mitigation plan shall include a monitoring and reporting plan, including a quality assurance/quality control plan. It shall also include conditions that the plan be implemented as long as the associated water right is used and that any water provided for mitigation purposes be prohibited from being applied to any other purpose. Except for closed basins, if monitoring of a mitigation plan shows the mitigation is not effective, departmental approval of the mitigation plan shall be suspended and the use of water under the water right shall then be subject to the instream flows until the department finds the mitigation plan is effective. In the case of a closed basin, if monitoring of a mitigation plan shows the mitigation is not effective, departmental approval of the mitigation plan shall be suspended and the water use shall cease until the department approves a new or revised mitigation plan.

     (d) A proposed ground water use will not impair senior water rights or withdraw water from a legally closed basin. Based on the hydrogeology of the basin, and the location and depth where ground water withdrawals generally occur, future ground water withdrawals may capture water that would result in impacts to surface water flows and levels in the Skagit River basin. A ground water right that is not subject to the instream flows or closures may only be approved if an applicant can demonstrate, through scientifically sound studies and technical analysis, and to the satisfaction of the department, that the proposed use will not cause impairment to existing water rights, including the instream flows set in this chapter or withdraw water from a legally closed source. The department acknowledges that additional scientific investigations may identify areas where water may be used without impairing the instream flows set in this chapter. If future scientifically sound investigations sufficiently identify such areas, the department will notify the public of these findings through publication of a Skagit River Water Supply Bulletin, and will account for uses under the reservations in WAC 173-503-073, 173-503-074 and 173-503-075 in accordance with these findings.

     (2) Before the department can approve a water right application for a new public water system under subsection (1)(b), (c), or (d) of this section, the applicant must also demonstrate that there are no other public water systems in the same proposed retail service area that can provide timely and reasonable water service as defined in WAC 173-503-025. If domestic potable water can be provided by another public water system, the department shall reject the water right application.

     (3) Surface and ground water appropriations may be issued in subbasins identified in WAC 173-503-074 that are subject to the instream flows and subject to the maximum water availability determination of two hundred cubic feet per second pursuant to WAC 173-503-050. The applicant must adequately demonstrate to the satisfaction of the department that the proposed withdrawal can be managed to avoid impairment of the instream flows established in WAC 173-503-040. The project proponent must also describe how its water needs will be met when water use is curtailed. If the water source is located in a closed subbasin, a water right can only be obtained under conditions in subsection (1)(a), (c) or (d) of this section.

     (4) No appropriation to withdraw, divert or store the public surface or ground waters of the Skagit River basin that conflicts with the provisions of this chapter will hereafter be commenced, except in cases where such rights will clearly meet the standards set forth in RCW 90.54.020 (3)(a).

     (5) All future surface and ground water appropriations shall be measured through installation and maintenance of appropriate measuring device(s) (water source meters), except for permit exempt uses serving a single residence. Water users required to measure water use must provide a reasonable right of inspection, allow access for the meter to be read, and report the data to the department or a local entity the department designates. The department may require additional users to measure water use, if the department determines that water supplies warrant further monitoring.

     (6) Any authorization for new beneficial uses must require development on a timeline that shows reasonable progress and due diligence.



[Statutory Authority: Chapters 43.27A, 90.54, 90.22, and 90.82 RCW. 06-11-070 (Order 05-15), § 173-503-060, filed 5/15/06, effective 6/15/06. Statutory Authority: Chapters 90.54 and 90.22 RCW, and chapter 173-500 WAC. 01-07-027 (Order 99-05), § 173-503-060, filed 3/14/01, effective 4/14/01.]