This chapter is promulgated by the department of ecology under authority and procedures provided in chapters 34.04, 43.21A, 90.03, and 90.44 RCW.

The Quincy groundwater subarea was duly established and the boundaries were set forth in chapter 173-124 WAC on January 15, 1973. Management rules for the Quincy subarea were then adopted on January 9, 1975, as chapter 173-134 WAC and amended on July 26, 1979.

The department has managed the groundwaters within the Quincy subarea since that time in accordance with those rules.

The following information is provided as a background to assist in understanding this chapter.

By the end of the 1973 irrigation season (in October), there were approximately 3,493,142 acre-feet of imported waters stored underground in the Quincy groundwater subarea. These imported waters are derived from the activities of the bureau and the Columbia Basin project. Most of the imported water is located in the shallow management unit where it comingles with naturally occurring public groundwaters.

The general pattern of flow of groundwater in the shallow management unit is toward Potholes Reservoir, a facility of the Columbia Basin project.

By order of the department of ecology, under Docket No. 74-772, dated the 8th day of January, 1975, declarations of artificially stored waters of the United States Bureau of Reclamation were accepted for the Quincy subarea and zones. There are no other accepted declarations relating to the Quincy subarea and zones.

Based on the best information available to the department in 1983, all waters naturally supplied to the Quincy Basin groundwater system have been allocated to permits or certificates under state law. Of the aggregate thus allocated, it appears that because of nonuse, small additional amounts of such water can be appropriated without overdraft.

The purpose of this chapter is to set forth rules of the department of ecology for the administration of all groundwaters within the Quincy groundwater subarea, including among others, commingled public groundwaters and artificially stored groundwaters. This chapter replaces chapter 173-134 WAC. The rules established herein set forth the regulatory and management program for these waters and all such waters shall be authorized for withdrawal and otherwise regulated in accordance with the provisions hereof. This state program is designated to protect both the public interest and private rights and interests in such waters and shall be implemented in a spirit of cooperation with affected persons and entities, public and private, including the holder of a declaration accepted by the department pursuant to RCW 90.44.130.

For purposes of this chapter, the following definitions shall apply:

(1) "Artificially stored groundwaters" means waters beneath the land surface within an area, subarea, or zone which are the subject of the declaration by the bureau and accepted by the department of ecology.

(2) "Bureau" means the United States Department of the Interior, Bureau of Reclamation.

(3) "Critical management area" means a specified locality within the Quincy subarea where depletion of groundwaters, including interference with surface waters, necessitates the implementation of special groundwater restrictions to ensure protection to rights and interests in said waters as set forth in this chapter.

(4) "Deep management unit" means all groundwaters underlying the shallow management unit.

(5) "Department" means the department of ecology.

(6) "Groundwaters" means all waters that exist beneath the land surface or beneath the bed of any stream, lake, or reservoir, or other body of surface water within the boundaries of the Quincy groundwater subarea.

(7) "Public groundwaters" means all groundwaters in the Quincy groundwater subarea other than artificially stored groundwater.

(8) "Quincy groundwater subarea," and "Quincy subarea" mean the subarea established pursuant to RCW 90.44.130 and set forth in chapter 173-124 WAC.

(9) "Shallow management unit" means the groundwater hydraulically continuous between land surface and a depth of 200 feet into the Quincy basalt zone and includes all of the Quincy unconsolidated zone.

It is noted that the definitions of (1) and (7) hereof are not intended to be identical with the definitions in RCW 90.44.035.

All public and artificially stored groundwater of the Quincy subarea shall be managed and regulated by the department of ecology in accordance with this chapter.

All withdrawals of waters of the deep management unit will be controlled by the prior appropriation provisions of RCW 90.44.050 and 90.44.060 and related code sections. The total authorized withdrawals under state permits or certificates from the deep management unit shall not exceed 97,901 acre-feet per year, unless the department should determine otherwise through further studies.

The department may approve amendments to public groundwater permits for lands located within the Quincy subarea, including changes in points of withdrawal, purpose, and places of use, only if it believes, after investigation, that the activities proposed in the amendment or amendments will not:

(1) Impair existing rights;

(2) Prove detrimental to the public interest;

(3) Cause the tapping of a different body of groundwater (as defined herein or as determined by the department);

(4) Adversely affect the comprehensive scheme of water management adopted for the Quincy subarea.

In addition, with regard to holders of permits or certificates for the use of public groundwaters in the Quincy subarea, said permits and certificates shall represent "a valid right to withdraw public groundwaters," as that term is used in RCW 90.44.100, only to the extent of beneficial use actually made under the permit or certificate.

Waters of the shallow management unit shall be subject to the following:

(1) Applications for withdrawal of public groundwaters shall be processed in accordance with the provisions of chapters 90.44 and 90.03 RCW.

The total quantity of withdrawals of public waters, whether authorized by permits and certificates issued under RCW 90.44.050, 90.44.060 or otherwise, shall not exceed 58,000 acre-feet per year. It appears there may be relatively small amounts of public waters (in the range of not more than 4,000 acre-feet annually) available for appropriation in the shallow management unit. Such small amounts are reserved for withdrawal for domestic and group domestic uses.

(2) No withdrawal of, or construction of any works for the withdrawal of artificially stored groundwaters shall be commenced by any person without obtaining permission of the department of ecology. Permission shall be obtained through the issuance of a permit as provided in chapter 173-136 WAC. Application for a permit shall be on a form furnished by the department. In relation to ruling upon any such application, the following shall apply:

(a) Each permit shall be conditioned to ensure that no withdrawal will interfere with the furnishing of adequate supplies of water to the Potholes Reservoir facility of the bureau to satisfy existing and future project needs of the bureau.

(b) Each permit shall be conditioned to ensure that no interference with rights established under state law, previously or in the future, to withdraw public waters or artificially stored groundwaters shall be allowed. Rights described herein shall include rights to the (1) maintenance of certain groundwater levels to ensure availability and (2) protection of the use ability of certain withdrawal facilities.

(c) To the maximum extent possible, consistent with rights and interest in the groundwaters of the Quincy subarea; wildlife, recreation, and other values associated with the general public interest in the groundwater in the subarea shall be protected and permits issued hereunder shall be so conditioned.

(d) Permits shall be conditioned such that the well depth shall be no greater than 200 feet into the basalt (the shallow management unit). However, when the total production from the authorized well(s), completed within the shallow management unit does not produce the quantity of water authorized under the permit in gallons per minute, the permittee may apply to the department of ecology for an exemption to the well depth limitation imposed by these regulations. Such an exemption will be granted if reasonable efforts have been made to develop water in the shallow management unit and the proposed deepening will not adversely affect existing rights in the deep management unit. The depth of the well(s) in any event shall not penetrate the top of the Grand Ronde Basalt unit. When an exemption is granted, the department will advise the permittee of the depth to the top of the Grand Ronde Basalt unit at the specific well site(s). The authorized wells must be of adequate diameter and casing wall thickness to accommodate a pump of sufficient capacity to produce the permitted quantity in gallons per minute. Notwithstanding the definitions in WAC 173-134A-040, withdrawals of water subject to exemptions shall be considered as artificially stored groundwater.

(e) Each permit shall be conditioned to provide that failure of the permittee to comply with the terms of an executed agreement as described in WAC 173-134A-130 shall constitute grounds for the department to terminate a permit issued under this subsection.

(f) Applications for permits shall be processed in order of their priority, based on the date of receipt of an application by the department of ecology.

(g) Permits granted herein shall pertain to a specific point(s) of withdrawal, and purpose, and place of use. No assignment of such permits can be made without written approval of the department.

The department may approve amendments to permits granted herein regarding changes in point of withdrawal, purpose, and place of use, if it believes, after investigation, that the amendment will comply with WAC 173-134A-070 (1) through (4). Application for amendments provided herein shall be made on forms provided by the department.

Permits for the use of artificially stored groundwaters may be amended as to places of use and purpose only to the extent that waters actually have been placed to beneficial use pursuant to the terms of said permits.

(h) No permit shall authorize the withdrawal of waters for agricultural irrigation use for more acres than authorized by federal reclamation law.

(i) Permits issued hereunder shall have no expressed termination date provided, however, the permit shall be modifiable and terminable by the department at any time for good cause in order to accomplish the water management and regulation program of this chapter. Modifications and terminations as provided herein shall be effectuated through the issuance of regulatory orders as described in WAC 173-134A-090.

All permits provided for in chapter 173-136 WAC shall contain development schedules requiring that water be put to beneficial use within a three-year period from the date of issuance. Any permit under which development has not been completed may be perfected to the extent of beneficial use, and cancellation proceedings will be initiated on the remaining undeveloped portion.

(j) By applying for and obtaining a permit hereunder, an applicant expressly waives all other claims of rights to withdraw groundwaters of the Quincy subarea for irrigation uses, except as such rights are (1) embodied in a permit or certificate pertaining to public groundwaters issued previously by the department of ecology or one of its predecessors or (2) based upon rights established prior to the enactment of chapter 90.44 RCW and are the subject of a claim filed with the department of ecology pursuant to RCW 90.14.041.

(k) There shall be no fee for filing an application for a permit authorized for withdrawal of artificially stored groundwaters under this subsection. Said application shall include the names and signatures of all legal owners of the lands proposed for irrigation.

(l) Withdrawals of artificially stored waters authorized by permit under this section shall be limited to a maximum cumulative total of no more than 177,000 acre-feet for each calendar year.

Withdrawals from wells presently drilled into both the shallow and deep management units, covered by an application filed with the department or a license to withdraw water issued by the bureau between May 12, 1967, and February 14, 1974, and which are also subject of a permit issued under this subsection (2), shall be considered as withdrawals from the shallow management unit.

(m) The duty of water for agricultural irrigation uses shall be not more than 3.5 acre-feet for each acre for each calendar year.

(n) No applications for permits submitted pursuant to WAC 173-134A-080(2) shall be approved for withdrawals of artificially stored groundwaters from wells located on lands adjacent to bureau waterways and on lands underlain by groundwater that hydraulically responds to changes in the water level of the Potholes Reservoir, which specifically are those lands described in amended department of ecology Order No. 75-54, second amendment, entered on February 3, 1986.

The total withdrawal limitations of WAC 173-134A-060 and 173-134A-080 shall apply only to that geographical area within the Quincy groundwater subarea that was described in the declaration of ownership of artificially stored waters by the United States Bureau of Reclamation accepted by order of the department under Docket Number 74-772 dated January 8, 1975.

(1) The department of ecology shall be responsible for the water management and regulation program applicable to the comingled waters provided in this chapter, including the authorization of withdrawals of artificially stored groundwaters and regulation of the same. The department shall, in order to ensure compliance with the water regulation and administration programs of this chapter, issue regulatory orders. Such orders shall be issued pursuant to RCW 43.27A.190 through 43.27A.210 and shall be subject to review as provided in chapter 43.21B RCW, before the pollution control hearings board.

(2) In times of shortage of water available to satisfy all groundwater withdrawals authorized under WAC 173-134A-080(2), the department shall reduce withdrawals, through issuance of regulatory orders, in order of the priority date of the permit, with the latest priority being regulated first. In relation thereto, the department may designate critical management areas within the Quincy subarea based upon any of the following:

(a) Where there is an inadequate supply of water to the Potholes Reservoir and the Potholes canal system;

(b) When there is a shortage of water to satisfy groundwater withdrawals authorized under WAC 173-134A-080(2);

(c) Where existing wildlife, recreational, and other values associated with the general public interest are or will be detrimentally affected on a significant scale, or

(d) Where necessary to protect rights to withdraw public waters. Designation of critical management areas shall be made through issuance of regulatory orders which shall define the areas and specify if the regulatory period is permanent or not. During this management period, the department shall determine the allowable limits of withdrawal of artificially stored groundwater within the critical management area.

(3) As part of its enforcement program, the department shall terminate permits, through the issuance of regulatory orders, when permittees fail to comply with the terms of an executed agreement as provided in WAC 173-134A-130.

(1) For the purpose of advising the department in the implementation of this chapter, there is established a technical committee consisting of one permanent member and one alternate member each from the bureau and the department assisted by other technical advisors (e.g. irrigation districts, municipalities) as the permanent members consider necessary.

(2) The role of the committee shall relate generally to providing advice pertaining to ground and surface water conditions and management in the Quincy subarea.

(3) The committee shall meet as necessary when called by a permanent member of the committee. Telephone conference calls may constitute a committee meeting.

Whenever the bureau believes its interest in the groundwaters of the Quincy subarea are not being adequately protected, it may request the department to issue regulatory orders or take other appropriate management and regulatory actions designed to protect such interest. If the department concludes the requested action is not warranted in the administration of this chapter, the department shall issue an order denying the request.

(1) The permit program of WAC 173-134A-080(2) shall not relate to (a) agricultural drains or (b) withdrawals of artificially stored groundwaters performed for the purpose of removing excess waters injurious to private or project lands, to bureau canals or wasteways or other similar facilities; provided that no activities pertaining to (b) above will be conducted without first notifying the department and requesting its comment within a reasonable time.

(2) The permit program of WAC 173-134A-080(2) shall not relate to withdrawals by public entities of artificially stored groundwaters performed as a necessary incident of the operation of an essential public service activity, such as a solid waste disposal facility or the fighting of fires. The public entity shall not construct facilities for making such withdrawals or engage in such withdrawals without first notifying the department and requesting comments from the department regarding the intended action. This subsection shall not relate to other than essential public services and shall not pertain to the supplying of water for general municipal uses pertaining to satisfaction of industrial and domestic needs.

(3) No permit shall be required under WAC 173-134A-080(2) for withdrawals of artificially stored groundwaters of less than 5,000 gallons per day for stockwatering purposes, for watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, for single or group domestic uses, or for an industrial purpose as prescribed in RCW 90.44.050 pertaining to the withdrawal of public groundwaters.

(1) No use of water under a permit issued pursuant to WAC 173-134A-080(2) shall take place until the recipient of such permit shall enter into an agreement with the bureau, on a form and in a content, approved and previously agreed to by the bureau and the department, pertaining to withdrawal of artificially stored groundwaters. The agreement shall relate to reasonable charges for withdrawal of artificially stored groundwaters and other pertinent provisions necessary to comply with federal law and ensure payment of such charges. Use of water before the permittee enters into an agreement with the bureau shall cause the permit to be terminated by the department.

(2) The bureau shall not enter into an agreement, as provided in WAC 173-134A-130(1), until a copy of a permit issued by the department pursuant to WAC 173-134A-080(2) is received by the bureau. Thereafter, upon presentation of a request the bureau shall enter into an agreement with eligible persons having state permits as described in WAC 173-134A-130(1).

(1) Nothing in this chapter, including any permit issued pursuant hereto, shall authorize the use of waters in a manner which injures the property of others.

(2) Nothing in this chapter purports or is intended to modify any rights of an irrigation district created under a water delivery and "repayment" contract between the United States and irrigation districts located within the Columbia Basin project.

(3) Nothing herein shall modify the rights of the United States to make use of the courts to protect its interests.

(4) Nothing in this chapter is intended to require the bureau to obtain a permit for recapture of groundwater for project purposes by wasteways and drains, including Potholes Reservoir, which water is covered by an accepted declaration of right to withdraw artificially stored groundwater pursuant to RCW 90.44.130.

(5) Nothing in this chapter purports to regulate the administration and operation of Columbia Basin project facilities.

The department of ecology shall initiate a review of the rules established in this chapter whenever new information, changing conditions, or statutory modifications make it necessary to consider revisions.

To the extent the department identifies groundwater rights that have reverted to the state pursuant to RCW 90.14.130, et seq.; it, in its discretion, may issue public groundwater permits not exceeding those quantities. Public groundwater made available due to relinquishment of water rights shall be subject to appropriation, reservation, or withdrawal in accordance with the applicable state water laws.

In enforcement of this chapter, the department of ecology may impose such sanctions as are appropriate under authorities vested in it, including but not limited to the issuance of regulatory orders under RCW 43.27A.190 and civil penalties under RCW 90.03.600.

All final written decisions of the department of ecology pertaining to permits, regulatory orders, and related decisions, made pursuant to this chapter shall be subject to review by the pollution control hearings board in accordance with chapter 43.21B RCW.