(1) This chapter is adopted in accordance with the Watershed Planning Act (chapter 90.82 RCW), Water Resources Act of 1971 (chapter 90.54 RCW), Minimum Water Flows and Levels Act (chapter 90.22 RCW), Regulation of public groundwaters (chapter 90.44 RCW), Water code (chapter 90.03 RCW), and the water resources management regulation, chapter 173-500 WAC, which was adopted under the authority of the Water Resources Act of 1971, chapter 90.54 RCW.

(2) This chapter applies to the management of all waters within the Walla Walla River drainage basin located in Washington state.

(3) This chapter shall not affect existing water rights, unless otherwise provided for in the conditions of the water right in question. It shall also not affect federal Indian and non-Indian reserved rights.

(4) The department shall initiate a review of this chapter whenever new information, changing conditions, or statutory modifications make it necessary to consider revisions.

For purposes of this chapter, the following definitions shall be used.

(1) "Allocation" means the designating of specific amounts of the water resource for specific beneficial uses.

(2) "Appropriation" means the process of legally acquiring the right to specific amounts of the public water resource for application to beneficial uses.

(3) "Consumptive use" means use of water whereby there is diminishment of the amount or quality of the water source.

(4) "Department" means the Washington state department of ecology.

(5) "Director" means the director of the department of ecology.

(6) "Domestic use" means use of water associated with human health and welfare requirements, including water used for drinking, bathing, sanitary purposes, cooking, laundering, and other incidental household uses. Irrigation of lawn and noncommercial garden under the permit exemption in RCW 90.44.050 shall not exceed one-half acre.

(7) "Environmental enhancement project" means a water storage project, above or below ground, that would provide net environmental benefits, with particular emphasis on enhancing salmonids production. Projects that enhance instream flows directly or indirectly qualify under the definition. Projects proposed as mitigation for new consumptive water rights do not qualify under this definition.

(8) "Gravel aquifer" means any geologic formation generally under unconfined, or water table, conditions which consist of sand and gravel and may contain interbedded layers of silt and clay.

(9) "Instream flow" means a level of stream flow, established under chapters 90.54, 90.03, 90.22, and 90.82 RCW, required in perennial streams to preserve wildlife, fish, scenic, aesthetic, and other environmental and navigational values. The term means "base flow" under chapter 90.54 RCW, a "minimum flow" under chapters 90.03 and 90.22 RCW, and "minimum instream flow" under chapter 90.82 RCW. In the Walla Walla Watershed Plan, adopted in June 2005 by Walla Walla and Columbia counties, the term "new appropriation flows" has the same meaning as instream flows under this chapter.

(10) "Municipal water supplier" and "municipal water supply purposes" are defined in RCW 90.03.015.

(11) "Nonconsumptive use" means a type of water use where either there is no diversion or withdrawal from a source, or where there is no diminishment of the amount or quality of the water source.

(12) "Perennial stream" means a stream that normally flows year-round.

(13) "Planning unit" means the Walla Walla watershed planning unit, established under chapter 90.82 RCW, and all successors, formally designated by the Walla Walla watershed planning initiating governments. The initiating governments are Columbia and Walla Walla counties, city of Walla Walla, and Gardena Farms Irrigation District No. 13.

(14) "Water right" means a right to make beneficial use of public waters of the state, including any water right established for instream flow purposes.

(15) "Withdrawal" means the extraction of groundwater, or the diversion of surface water for a beneficial use.

The department hereby establishes the following stream management units (Table I). The boundaries of the management units are shown in WAC 173-532-120.

(1) The instream flows established in this chapter are based on the recommendations of the planning unit; consultation with the departments of fish and wildlife, agriculture, and community, trade, and economic development; the Confederated Tribes of the Umatilla Indian Reservation; and public input received during the rule-making process.

(2) Instream flows established here are water rights, which protect stream flows from future consumptive appropriations. The instream flow recommendations submitted by the planning unit received the unanimous vote of the planning unit. In accordance with RCW 90.82.080 (2)(a), and unanimous vote of the planning unit, the priority date of the instream flows is the effective date of this chapter.

(3) Instream flow rights shall be protected from impairment by junior water rights and by all future changes and transfers of senior and junior water rights.

(4) Instream flows, expressed in cubic feet per second (cfs), are measured at the management points identified in WAC 173-532-025. For reaches that do not have management points, the flows established for the nearest management point or points (where a tributary with a management point contributes to such flow) apply to those reaches.

(5) Instream flows are established for the stream management units in WAC 173-532-025, as indicated in Table II.

(1) Based on historical and current low flows and water withdrawals by existing water right holders, the department has determined that no waters are available for new consumptive uses during periods of low surface water flows. Therefore, all rivers and streams in the basin are seasonally closed to any further consumptive appropriation from May 1 to November 30 with the exception that the Walla Walla River and all of its tributaries between Stateline and Detour Road at MP 5a, and Mill Creek and all of its tributaries from the confluence with the Walla Walla to the headwaters shall be closed from June 1 to November 30.

(2) Based on the hydrogeology of the basin, the department finds that gravel aquifers in the basin are hydraulically connected to surface waters in the basin. Therefore, the gravel aquifers are closed. Exception to this closure is provided for future permit-exempt groundwater withdrawals as prescribed in WAC 173-532-050 and for nonconsumptive groundwater use as prescribed in WAC 173-532-045. The closure does not affect the construction of a replacement well or new additional well or wells consistent with the conditions set in RCW 90.44.100.

(3) Future permits to withdraw surface water during nonclosure periods, shall be limited to environmental enhancement projects as described in WAC 173-532-055.

(4) All unappropriated surface waters and groundwater from the gravel aquifer for which an exception to the closure does not apply, are hereby appropriated during the above periods of closure for purposes of protecting and preserving fish and wildlife and other instream values.

Surface and groundwater permits may be issued only if consistent with the requirements of the surface and groundwater statutes and other applicable requirements of law and if any one of the following conditions apply:

(1) The proposed water use is nonconsumptive.

(2) The proposed groundwater use is from the basalt aquifer and will not:

(a) Impair existing water rights;

(b) Affect any closed surface source where instream flows have not been established; and

(c) Affect any closed gravel aquifer.

(3) The proposed surface water use would occur only during nonclosure periods and is intended for an environmental enhancement project, as defined in WAC 173-532-020(6) and meeting the criteria listed in WAC 173-532-055.

Where connection to an existing municipal water supply cannot be provided in a timely and reasonable manner, the following exceptions to the gravel aquifer closures in WAC 173-532-040 shall apply:

(1) Permit exempt withdrawals for purposes other than stockwatering may occur in the area that drains to the Snake and Columbia rivers (Burbank area), consistent with the requirements set in RCW 90.44.050.

(2) Permit exempt withdrawals may occur in areas with a zoned density equal to or more dense than one residence per ten acres (high density areas). However, future withdrawals from the gravel aquifer in the high density areas shall be limited to only domestic uses and outdoor uses, such as irrigation of lawn and noncommercial garden, outdoor washing, etc. Outdoor uses for the purposes of this subsection do not include stockwatering. The total amount of water that may be withdrawn shall not exceed the amounts specified in (a) and (b) of this subsection.

(a) For any one residence, one thousand two hundred fifty gallons a day (1,250 gpd).

(b) For multiple residences that are part of a group use in addition to the limitations in (a) of this subsection, the combined maximum water withdrawal for the development shall not exceed five thousand gallons per day (5,000 gpd).

(3) Permit exempt withdrawals for purposes other than stockwatering may occur in areas where the zoned density is less than one residence per ten acres, but must be consistent with the requirements set in RCW 90.44.050.

(4) Permit exempt withdrawals for stockwatering may occur as long as the water use from an exempt well in the gravel aquifer does not exceed: Seven hundred gallons per day (700 gpd) on a legal lot of record size of ten acres or less; two thousand five hundred gallons per day (2,500 gpd) on a legal lot of record size between ten and twenty acres; or five thousand gallons per day (5,000 gpd) on a legal lot of record size twenty acres and greater. Feedlots or other activities not related to normal grazing land uses are not considered stockwatering for the purpose of this chapter.

(5) All future appropriation from the gravel aquifer in the high density areas, including for stockwatering, shall be required to install and maintain a water measuring device (water source meters) meeting specifications provided by the department. The user must report to the department, by December 31 of each year, monthly water use from May 1 to November 30.

(6) To avoid and/or mitigate cumulative impacts on existing water rights (which for purposes of this chapter are considered to include the instream flows established herein and the seasonally closed water sources), new permit-exempt users from the gravel aquifer in the high density areas must provide water-for-water mitigation, meaning equivalent quantities of water, for any outdoor water use from May 1 to November 30. The effect of this mitigation requirement shall be delayed until May 1, 2008; however, if the ecology director finds that despite diligent and committed efforts, mitigation arrangements for new users cannot be reasonably obtained by that date, the director may grant an extension of up to one year. After May 1, 2008, any such withdrawal for outdoor uses commenced after the effective date of this rule must have mitigation in place during all times that the withdrawal occurs. This means that even if a withdrawal for outdoor uses commenced before May 1, 2008, that withdrawal is subject to the outdoor mitigation requirement after that date. Any such outdoor water use that occurs prior to mitigation being in place is deemed illegal and the department may order the water user to cease and desist outdoor water use immediately as well as seek any other available administrative or judicial remedies.

(7) The department will keep records of all future permit-exempt groundwater appropriations from the gravel and basalt aquifers.

(8) In consultation with Walla Walla and Columbia counties, the planning unit and the Confederated Tribes of the Umatilla Indian Reservation, the department will develop a mitigation plan identifying methods and means, such as the use of the trust water right program under chapter 90.42 RCW, to assist future permit-exempt users to offset the impacts of their proposed water use, either individually or jointly.

(9) If the department determines, in consultation with Walla Walla and Columbia counties, the planning unit and the Confederated Tribes of the Umatilla Indian Reservation, that the impacts of outdoor water use from new permit-exempt wells in the gravel aquifer are not fully mitigated as required in WAC 173-532-050(6) and may impair existing rights, the department shall issue an order and public notice stopping all such use. The order and notice shall define the area for which the stoppage applies. The order shall continue until such time that adequate and reliable mitigation is in place.

(10) For purposes of this chapter the priority date of a withdrawal under the permit exemption in RCW 90.44.050, shall be the date upon which water is put to actual beneficial use on the subject property for the purpose of use in question. For domestic use, actual beneficial use shall not be considered to occur until water is used within a residential structure.

The department finds there may be water available above existing water rights and instream flows that could be captured for environmental enhancement projects. This water is only available at specific locations where instream flows are established and during the nonclosure periods, as specified in Table III. A surface water withdrawal for an environmental enhancement project ("EEP") may be approved if it meets all of the following:

(1) EEP may be sponsored only by:

(a) The Confederated Tribes of the Umatilla Indian Reservation;

(b) A municipal governments located within Walla Walla or Columbia counties;

(c) An irrigation district or ditch company within the watershed;

(d) The Washington department of fish and wildlife;

(e) A conservation district within the watershed;

(f) A quasi-governmental organization within the watershed; or

(g) A nonprofit organization within the watershed.

(h) Individual landowners may qualify as a sponsor only when the said landowner is a participant in a project sponsored by one or more of the aforementioned qualifying sponsors.

(2) A proposed project may only qualify as an EEP after the project has received a consensus recommendation from the Confederated Tribes of the Umatilla Indian Reservation, the Planning Unit, Washington department of fish and wildlife, and planning unit initiating governments.

(a) The consensus recommendation shall occur after receiving technical advice and recommendations from the technical advisory group with representatives from:

(i) The Confederated Tribes of the Umatilla Indian Reservation;

(ii) The governor's salmon recovery office;

(iii) The Walla Walla basin watershed council;

(iv) The Washington department of fish and wildlife; and

(v) The department of ecology.

(vi) The United States Army Corps of Engineers, United States Forest Service, United States Fish and Wildlife Service, and National Marine Fisheries Service may be invited to participate in the technical review.

(b) Technical evaluation shall consider:

(i) The specific management objectives for the stream management reaches affected by the EEP;

(ii) Effects of the project on inward and outward migration of salmonids and ecological function provided by high stream flows; and

(iii) Cumulative effects of all environmental enhancement projects.

(c) The technical evaluation shall also weigh any detriment caused by storing some seasonal stream flows (e.g., high winter flows and flood flows) against any benefit the stored water would provide.

(3) An application for EEP must include a monitoring and adaptive management program and show ability to implement such a program. Applicants will define how they will measure and evaluate the project's effectiveness in achieving environmental enhancement goals. The technical advisory group may assist in developing the criteria for evaluating project effectiveness.

(4) Initial water use authorization for EEP will be for short-term. No appropriative right shall develop out of this authorization. The department may only issue a permanent water right if the project's intended benefits are being realized, on the advice of the technical group and if consistent with the requirements for new appropriations under RCW 90.03.290.

(5) All other applicable permits must be obtained from the department, Washington department of fish and wildlife, and other agencies, prior to construction or water use.

(6) Water right permits for EEP shall be subject to existing water rights and instream flows as established under this chapter.

(7) In consideration of the recommendations of the technical advisory group, the withdrawals shall be managed consistent with salmonid migration needs and with the protection of high flow functions.

(8) Monitoring and sampling shall be consistent with the monitoring plan developed and approved for the project. Daily records shall be kept of the quantity of water diverted to the project. Such records shall be made available to the department upon request.

(9) The department will maintain a record of all diversion for EEP approved in each stream management unit.

(10) The maximum allocation for EEP within a stream management unit shall not exceed the values indicated in Table III.

*The total allocation on the Touchet River and North Fork Touchet River shall not exceed 175 cfs. The total maximum allocation on the Walla Walla River and Mill Creek shall not exceed 300 cfs. Due to concerns over potential impacts on inward and outward migration of salmonids and ecological function of high flows the maximum allocation may be considerably less.

(1) The department shall prepare and make available to the public, technical and educational information regarding the scope and requirements of this chapter. This is intended to assist the public in complying with the requirements of their water rights and applicable water laws and rules.

(2) When the department determines that a violation of this chapter has occurred, it shall:

(a) First attempt to achieve voluntary compliance, except in appropriate cases involving potential harm to other water rights or the environment. An approach to achieving voluntary compliance is to offer information and technical assistance to a violator. The information or technical assistance identifies, in writing, one or more means to accomplish the person's purposes within the framework of the law.

(b) If education and technical assistance do not achieve compliance, the department has the authority to issue a notice of violation, a formal administrative order under RCW 43.27A.190, or assess penalties under RCW 43.83B.336, 90.03.400, 90.03.410, 90.03.600, 90.44.120 and 90.44.130.

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.

For the purpose of administering this chapter, the boundaries of the Walla Walla River basin identified in the figure below are presumed to accurately reflect the basin located within Washington state.