consolidated cases nos. 05-72739 and 05-74060 i united ... · sound energy, inc. states as follows:...
TRANSCRIPT
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Consolidated Cases Nos. 05-72739 and 05-74060
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IIN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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SNOQUALMIE INDIAN TRIBE,
Petitioner,
V.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
and
PUGET SOUND ENERGY, INC.,
Petitioner,
V.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
Petition for Review from an Order of
the Federal Energy Regulatory Commission
PUGET SOUND ENERGY, INC.'S COMBINED
OPENING & INTERVENOR BRIEF
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Mark W. Schneider
Markham A. QuehrnKristine R. Wilson
PERKINS COIE LLP
10885 NE 4th Street, Suite 700
Bellevue, WA 98004-5579
(425) 635-1400
Attorneys for Petitioner/Intervenor
Puget Sound Energy, Inc.
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CORPORATE DISCLOSURE STATEMENT
OF
PUGET SOUND ENERGY, INC.
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Puget
Sound Energy, Inc. states as follows:
Puget Sound Energy, Inc. is an electric and natural gas utility with its
principal office in Bellevue, Washington. Its parent company is Puget Energy,
Inc. Puget Energy, Inc. owns 100 percent of Puget Sound Energy, Inc.'s common
stock. Puget Energy, Inc. has no parent corporations and is not aware of any
publicly held company that owns 10 percent or more of its outstanding stock.
Dated this/'J'_Zday of July, 2006.
Respectfully submitted,
PERKINS COIE LLP
Mark W. Schneider
Markham A. QuehrnKristine R. Wilson
Perkins Coie LLP
10885 N.E. 4 th Street, Suite 700
Bellevue, WA 98004-5579
Attorneys for Puget Sound Energy, Inc.
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TABLE OF CONTENTS
STATEMENT OF JURISDICTION .............................................................. 1
STATEMENT OF ISSUES ............................................................................ 2
STATEMENT OF THE CASE ...................................................................... 2
STATEMENT OF FACTS ............................................................................. 4
History of the Falls, the Project, and Outside Influences onthe Falls ................................................................................................ 4
1. The Falls Has Had Extensive Commercial and
Recreational Use ........................................................................ 4
2. The Project Has Long Provided Power for the Regionand Maintained Flows Over the Falls ....................................... 7
3. Despite Long-Term Commercial and Residential Uses,
the Tribe Only Recently Raised Concerns Regarding Use
of the Falls for Religious Purposes ........................................... 8
4. The Tribe's Own Cultural and Religious Study Does Not
Ascribe Unique Status to the Falls ............................................ 8
5. The Record Reflects Present-Day Evidence of the Tribe's
Use of the Falls for Religious Practices .................................. 11
FERC Listened and Took the Tribe's Interest Into Account,
Weighing Those Interests in FERC's Relicensing Process ............... 13
1. The Tribe Was Thoroughly Consulted in the
Pre-Application Process .......................................................... 14
2. The Tribe Had Additional Consultation Opportunities
While FERC Considered PSE's Application ........................... 17
3. FERC Responded to the Tribe's Comments, Adjusting
the Flow Regime and Development Activities to Protect
Sensitive Tribal Areas and Practices While BalancingOther Compelling Interests ..................................................... 18
FERC Decided That Issuance of a New License Was in the
Public Interest and Rejected the Tribe's Decommissioning
Alternative as Contrary to That Compelling Government
Interest ................................................................................................ 23
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D. Tribe's Request for Rehearing and the First Rehearing Order .......... 25
E. In Its Rehearing Orders, FERC Revised the Flow Regime
Established by Ecology's Water Quality Certification ...................... 27
1. Ecology Balanced Beneficial Uses of the Snoqualmie
River, Including Aesthetics and Hydropower Uses, in Its
WQC ........................................................................................ 27
2. PSE Appealed FERC's Revision of the WQC Flow
Regime ..................................................................................... 29
STANDARD OF REVIEW .......................................................................... 29
SUMMARY OF THE ARGUMENT ........................................................... 31
ARGUMENT ............................................................................................... 33
A. FERC's License Order Does Not Substantially Burden the
Tribe's Religious Practices ................................................................. 33
B. Additionally, Even if the Decision Were Deemed to
Substantially Burden the Tribe's Religious Practices, FERCCorrectly Applied and Satisfied the RFRA Test ............................... 37
1. FERC Determined that Compelling Interests WereAdvanced by the Least Restrictive Means .............................. 37
2. Substantial Evidence Supports FERC's Findings on
Compelling Interests, Free Exercise, Least Restrictive
Means, and Balancing Determination ..................................... 42
C. FERC Complied With NHPA's Consultation Requirements and
Its Regulations During the Relicensing Process ............................... 43
1. The Tribe Was Properly Consulted Under Section 106 ofthe NHPA ................................................................................. 43
2. ACHP Regulations Allow an Agency to Delegate
Consultation Activities to an Applicant While Retaining
the Agency's Ultimate Decision-Making Authority ............... 47
3. FERC's Ex Parte Rules Discourage Direct, Off-the-
Record Consultation Between FERC and Tribes .................... 48
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VIII.
D. FERC's Subsequent "Adjustment" to the Flow Regime in the
Rehearing Orders Conflicts With the CWA and Is Not
Supported by Substantial Evidence ................................................... 49
1. FERC's Rehearing Orders Impermissibly Interfere With
Ecology's Delegated Federal Authority to RegulateWater Quality ........................................................................... 49
2. FERC's Revision to the WQC Flows Is Not Based onSubstantial Evidence ............................................................... 56
CONCLUSION ............................................................................................ 59
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I TABLE OF AUTHORITIES
Cases
Alabama Rivers Alliance v. FERC, 325 F.3d 290 (D.C. Cir. 2003) ...................... 57
Am. Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir. 1997) .............................. 55, 56, 57
American Rivers v. FERC, 201 F.3d 1186 (9th Cir. 2000) .............................. 36, 57
Appalachian Power Co. v. United States, 607 F.2d 935 (1979) ............................ 58
BearLake Watch, lnc. v. FERC, 324 F.3d 1071 (9th Cir. 2003) ..................... 32, 33
Bollard v. Cal. Province of the Soc. of Jesus, 196 F.3d 940 (9th Cir.
1999) .................................................................................................................... 33
Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) ....................................................... 37
Cal. Dep't of Water Res. v. FERC, 341 F.3d 906 (9th Cir. 2003) .......................... 31
City ofBoerne v. Flores, 521 U.S. 507 (1997) ...................................................... 38
City of Fremont v. FERC, 336 F.3d 910 (9th Cir. 2003) ......................................... 2
Cooley v. FERC, 843 F.2d 1464 (D.C. Cir. 1988) ................................................. 32
Droz v. Comm'r, 48 F.3d 1120 (9th Cir. 1995) ...................................................... 41
Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466
U.S. 765 (1984) ................................................................................................... 55
Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980) ............................ 42
Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996) ......................................... passim
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987) ................................................. 35
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Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) .......................................... 36, 38
Hernandez v. Comm'r, 490 U.S. 680 (1989) .......................................................... 35
Information Providers' Coalition for Defense of First Amendment v.
Fed. Commc'ns Comm'n, 928 F.2d 866 (9th Cir. 1991) ..................................... 32
lnupiat Cmty. of Arctic Slope v. United States, 548 F.Supp. 182 (D.
Alaska 1982), affd, 746 F.2d 570 (9th Cir. 1984) ............................................. 42
Lyng v. Nw. lndian Cemetery Protective Ass'n, 485 U.S. 439 (1988) ............. 26, 40
Monongahela Power Co. v. Marsh, 809 F.2d 41 (D.C. Cir. 1987) ....................... 58
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto lns. Co., 463 U.S.29(1983) ............................................................................................................. 31
Muckleshoot lndian Tribe v. U.S. Forest Service, 177 F.3d 800 (9thCir. 1999) ............................................................................................................ 49
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994) ............... 64
Pres. Coal., Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982) ...................................... 47
PUD No. 1 of Jefferson County v. Wash. Dep't of Ecology, 511 U.S.
700 (1994) ............................................................................................... 34, 56, 59
Pueblo ofSandia v. United States, 50 F.3d 856 (10th Cir. 1995) ......................... 48
S.D. Warren Co. v. Me. Bd. of Envtl. Prot., __ U.S. __, 126 S. Ct.1843 (2006) ......................................................................................................... 54
San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir.2005) .................................................................................................................... 47
Sherbert v. Verner, 374 U.S. 398 (1963) ................................................... 33, 39, 40
Steamboaters v. FERC, 759 F.2d 1382 (9th Cir. 1985) ......................................... 31
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Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996), cert. denied, 519
U.S. 821 (1996) ............................................................................................. 37, 38
U.S. Dep'toflnteriorv. FERC, 952 F.2d 538 (D.C. Cir. 1992) ...................... 31, 32
United States v. Lee, 455 U.S. 252 (1982) ............................................................. 44
Wisconsin v. Yoder, 406 U.S. 205 (1972) ........................................................ 39, 42
Statutes
5 U.S.C. § 551 ......................................................................................................... 29
5 U.S.C. § 706(2) .................................................................................................... 30
16 U.S.C. § 470 ............................................................................................ 2, 13, 44
16 U.S.C.
16 U.S.C.
16 U.S.C.
16 U.S.C.
16 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
§ 791a ....................................................................................................... 1
§ 797(a) .................................................................................................. 39
§ 803(a) ............................................................................................ 26, 40
§ 8251 ....................................................................................................... 1
§ 8251(b) ................................................................................................. 31
§ 1251 ...................................................................................................... 2
§ 1251(b) ................................................................................................ 50
§ 1313(d) ................................................................................................ 32
§ 1314(0 ................................................................................................ 50
§ 1341 .................................................................................................... 54
§ 1341(a) ................................................................................................ 50
§ 1341(d) .......................................................................................... 49, 50
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42 U.S.C. § 2000bb ............................................................................................ 2, 32
42 U.S.C. § 4321 .................................................................................................... 13
Chapter 90.54 RCW ............................................................................................... 55
RCW 90.48.260 ................................................................................................ 50, 54
RCW 90.54.020(1) ................................................................................................. 55
RCW 90.54.020(3) ................................................................................................. 32
Regulations and Rules
03-14-129 Wash. Reg. 72 (July 1, 2003) ............................................................... 28
18 C.F.R. § 2.1c ...................................................................................................... 52
18 C.F.R. § 385.2201(b) ......................................................................................... 52
25 C.F.R. § 83.7(b) ................................................................................................. 10
36 C.F.R. § 800.14(b) ............................................................................................. 50
36 C.F.R. § 800.16(m) ............................................................................................ 47
36 C.F.R. § 800.2(c) ......................................................................................... 46, 51
40 C.F.R. § 131.12 .................................................................................................. 58
59 Fed. Reg. 22,951 ................................................................................................ 52
Ch. 173-225 WAC .................................................................................................. 54
Pub. L. No. 109-58 ................................................................................................. 23
WAC 173-201A-030( 1) .......................................................................................... 28
WAC 173-201A-070 ........................................................................................ 35, 59
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WAC 173-201A-070(1) .......................................................................................... 60
Commission Decisions
In re Hydroelectric Licensing Under the Federal Power Act, 102
FERC ¶ 61,185 .................................................................................................... 53
PCA Hydro lnc., 110 FERC ¶ 62,010 (2005) ........................................................ 56
Puget SoundPower & Light Co., 53 F.P.C. 1657 (1975) .............................. 5, 8, 19
Puget SoundPower &Light Co., 54 F.P.C. 157 (1975) .......................................... 8
Puget SoundPower & Light Co., 54 F.P.C. 599 (1975) .......................................... 8
Wis. Pub. Serv. Corp., 110 FERC ¶ 62,215, 2005 WL 510778 (2005) ................. 56
Other Authorities
Guidelines for Evaluating and Documenting Traditional Cultural
Properties (1990) ................................................................................................ 51
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I. STATEMENT OF JURISDICTION
On November 25, 1991, Puget Sound Energy, Inc. ("PSE") 1 filed an
application (the "Application") with the Federal Energy Regulatory
Commission ("FERC") for relicensing of its Snoqualmie Falls Hydroelectric
Project ("Project") pursuant to the Federal Power Act, 16 U.S.C. § 79 la et seq.
("FPA"). On June 29, 2004, FERC issued an order relicensing the Project and
authorizing minor refurbishment (the "License Order"). On July 29, 2004, the
Snoqualmie Indian Tribe (the "Tribe") filed with FERC a request for rehearing
and stay of the License Order. On March 5, 2005, FERC issued an order
partially granting and partially denying the Tribe's request and denying a stay
(the "First Rehearing Order"). On April 28, 2005, the Tribe filed a petition for
review of the First Rehearing Order. On March 31, 2005, PSE requested
reheating of the First Rehearing Order pursuant to 16 U.S.C. § 825l. On June 6,
2005, the Court granted PSE's motion to intervene in the Tribe's petition for
review proceeding. Upon FERC's decision rejecting PSE's rehearing request,
PSE petitioned this Court for review of that June 1, 2005 FERC order (the
"Second Reheating Order") on July 8, 2005. The parties jointly moved to
consolidate these proceedings on August 4, 2005. The First Rehearing Order
At the time the application was submitted, the licensee's name was
Puget Sound Power & Light Company. The name of the company was changedto Puget Sound Energy, Inc. in 1997.
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and the Second Reheating Order are together called "FERC's Reheating
Orders." The Court granted that motion on August 9, 2005.
This Court has jurisdiction pursuant to Section 313 of the FPA, 16 U.S.C.
§ 825l(b), City of Fremont v. FERC, 336 F.3d 910, 913-14 (9th Cir. 2003).
II. STATEMENT OF ISSUES
1. Whether FERC's relicensing decision, expressed in the License Order
and FERC's Rehearing Orders (collectively the "Decision"), complies
with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb
(1993) ("RFRA").
2. Whether the Decision is supported by substantial evidence.
3. Whether FERC's consultation with the Tribe complied with the
National Historical Preservation Act, 16 U.S.C. § 470 (1966)
("NHPA"), and FERC's regulations implementing the NHPA.
4. Whether FERC erred in revising the instream flow requirements for
the Project (a) in conflict with Washington State Department of
Ecology's ("Ecology") water quality certification ("WQC") issued
under the Clean Water Act, 33 U.S.C. § 1251 et seq. (1977) ("CWA")
and (b) without the support of substantial evidence.
III. STATEMENT OF THE CASE
This case concerns the Decision to issue a new license for the Project in
consideration of many--and often competing--public interests. Since 1898,
energy from the Project at Snoqualmie Falls (the "Falls") has provided homes
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and businesses in Washington State with clean, renewable and affordable
electricity. AR 1074, ER 1897-1901; 1960-92. The annual average energy
production of the Project is approximately 273,000 megawatt hours. AR 1294,
ER 2170. The Project is listed on the National Register of Historic Places. AR
1074, ER 1790. The Project provides substantial flood control benefits for the
upper Snoqualmie Valley. AR 1294, ER 2163. As a recreational resource, the
Project is visited by approximately 1.5 million people per year. AR 1074, ER
1754.
The Falls is also a resource of religious and cultural importance to the
Tribe; however, the written and oral evidence offered by the Tribe in this regard
is inconsistent and inconclusive. The Tribe actively participated in the FERC
proceeding advocating these interests and the view that continuation of the
Project in any form was inconsistent with these interests.
FERC carefully considered the Tribe's interests. FERC also considered
the interests articulated by five other federal agencies, four state agencies, the
Tulalip Tribes, the Yakama Nation, local governments, environmental groups
and the general public. AR 1294, ER 2144-146, 2164-165. FERC issued a new
license that struck a balance among these diverse interests. In the case of the
Tribe's interests, FERC provided enhanced flows over the Falls and limited
Project development to conform more closely to natural conditions.
With one exception, FERC properly balanced the various interests. The
exception concerns FERC's imposition of flow restrictions that directly conflict
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with Ecology's WQC. FERC lacks authority to override a WQC to its own
liking, and in this case did so without the support of substantial evidence.
For these reasons, PSE requests that this Court affirm (a) the the License
Order with respect to cultural, religious, and historic resource issues, and
(b) reverse FERC's Reheating Orders with respect to the inappropriate
adjustment of the Project's flow regime in conflict with Ecology's WQC.
IV. STATEMENT OF FACTS
A. History of the Falls, the Project, and Outside Influences onthe Falls
Since the late-nineteenth century, the area around the Falls has
experienced significant commercial and residential development. The Project is
but one example. Throughout this period, the Falls has been one of many
natural features of traditional cultural and religious value to the Tribe. The
characteristics of the Falls associated with these values--water in volumes and
at times that more closely conform to natural conditions--were enhanced by
FERC in the License Order.
1. The Falls Has Had Extensive Commercial and
Recreational Use
Snoqualmie Falls "has long been one of the most heavily visited
destinations in Washington State, with an estimated 1,500,000 visitors per
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year." AR 1, ER 42. 2 This is not a new circumstance, nor is it attributable to
FERC's decision to relicense an existing project. For over 100 years the area
around the Falls has been the site of extensive and ever-growing development
and tourism, ld., ER 49. Rather than exacerbating development of the privately
held property near the Falls, 3 FERC has required and continues to require PSE
to preserve significant areas in and around the Falls in a natural condition. 4 The
License Order also requires PSE to maintain public access across this private
property for at least another 40 years. 5 This includes access for religious and
recreational purposes. Means of access include trails that lead to the river, an
observation area, and a park. 6
Commercial development in the area of the Falls began in 1884, when the
first logs were floated over the Falls downriver to a mill. AR 1, ER 49. By the
late 1880s, the Snoqualmie Mill Company began purchasing land in the area for
2 The Falls is "second only to Mt. Rainier in annual attendance among all
of Washington State's scenic attractions." AR 26, ER 470.
3 PSE owns fee title to 97 acres of land surrounding the Falls, and lesser
rights to 162 acres within the project boundary. AR 1279, ER 2136. Pursuant
to Article 19 of the original license, PSE has provided free public access across
its private property. 53 F.P.C. 1657, 1668 (1975).
4 53 F.P.C. 1657 (1975); AR 1294, ER 2143-2221.
s AR 1294, ER 2173.
6Id., ER 2158-60.
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logging, ld. In more recent times, a mill upstream of the Falls was operated by
the Weyerhaeuser Company. AR 1074, ER 1752.
In 1889, the Seattle, Lakeshore and Eastern Railroad constructed a line
past the Falls as part of its plan to cross Snoqualmie Pass. AR 1, ER 332. The
railroad attracted tourists to the Falls. AR 1, ER 296. A dance pavilion was
built in the early 1890s on the south bank of the river, ld.. Commercial
establishments and restaurants have also existed on the north bank for many
years. AR 1, ER 344-45. Today, Salish Lodge, a luxury hotel and spa, is
situated on the north bank overlooking the Falls. ld., AR 1074, ER 1701. In
recent years, significant residential projects have been developed in the vicinity
of the Falls. AR 1074, ER 1762.
Plant 1 of the Project, constructed in 1898, was the world's first electric
generating facility to be built totally underground and the first major
hydroelectric plant in Washington. AR 75, ER 699. This effort was an
extraordinary engineering endeavor for the time. AR 1, ER 297. In 1976, the
plant was listed on the National Register of Historic Places. The eligibility
determination notes:
Although the Pacific Northwest has many facilities for the
generation of hydroelectric power, probably none is more
innovative as the cavity generating station of Puget Sound
Power and Light. It is significant not only as a very earlyengineering facility in the state, but also because of its
unusual placement and the high percentage of originalequipment still in use.
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ld., ER 430. The American Society of Civil Engineers also recognized the
cavity generating station as a National Historic Civil Engineering Landmark.
ld., ER 437-38. In 1905, Plant 1 was expanded and an additional generating
unit was installed, ld., ER 342-43. In 1910, Plant 2 was constructed, ld.,
ER 343. In 1957-1958, Plant 2 was expanded to accommodate a second
generating unit. ld., ER 51.
In the early 1900s, a state highway was constructed, including a bridge
across the river just upstream of the Falls. AR 1, ER 227; AR 1074, ER 1791.
The highway opened up the north side of the river to development and tourists.
AR 26, ER 459.
In the 1960s, Snoqualmie Falls Park was developed to make the area
more accessible and enjoyable to visitors. An observation deck was built,
cantilevered out over the cliffoverlooking the Falls. AR 1, ER 345, 388-89.
The Park was developed with landscaping, picnic areas, walkways, and other
tourist amenities. Id., ER 51.
2. The Project Has Long Provided Power for the Regionand Maintained Flows Over the Falls
In 1975, the Federal Power Commission issued a license for the Project.
Puget Sound Power & Light Co., 53 F.P.C. 1657 (1975), 54 F.P.C. 157 (1975),
54 F.P.C. 599 (1975). The Project consists of a low-level diversion dam located
upstream of the Falls, an underground powerhouse (Plant 1) and an above-
ground powerhouse downstream of the Falls (Plant 2), for a total capacity of
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44.4 megawatts. AR 1294, ER 2148; AR 1074, ER 2-1&2-2 (description and
figure displaying existing Project facilities). Pursuant to the 1975 license, PSE
has maintained an instream flow of 100 cfs over the Falls during daylight hours.
AR 1074, ER 1702. When flows in the river exceed the Project's hydroelectric
capacity, which is about 37 percent of the time, the additional water also passes
over the Falls. Id. The Project is near major load centers, and power from the
Project is used to meet Pacific Northwest electricity demand. AR 1294, ER
2168.
3. " Despite Long-Term Commercial and Residential Uses,
the Tribe Only Recently Raised Concerns Regarding Use
of the Falls for Religious Purposes
During the 1975 licensing proceeding, there were no comments by any
tribal members, no mention of religious use of the Falls, and no expression of
any concerns with the Project. AR 26, ER 460. From 1898 until the late 1980s,
the Tribe did not raise any concerns about the Project's impact on tribal religion.
Id. These issues were first raised in the relicensing proceeding, ld.
4. The Tribe's Own Cultural and Religious Study Does Not
Ascribe Unique Status to the Falls
The Tribe's cultural and religious history is well documented, in no small
part due to the Tribe's efforts to seek federal recognition as an Indian Tribe. 7
7 Until 1999, the federal government recognized The Tulalip Tribes as
representing the Snoqualmie Indians, and the Tulalip Tribes claimed the
Snoqualmie Indians as part of their body. AR 1, ER 48; AR 60, ER 659-661.
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These materials provide an important context for understanding the significance
of the Falls to the Tribe.
In support of its petition for recognition, 8 the Tribe submitted a Cultural
Continuity Study prepared in 1986 by Professors Kenneth D. Tollefson, Ph.D.,
and F. Douglas Pennoyer, Ph.D. (the "Tribe's Study") AR 26, ER 484-643.
This 450-page document describes Snoqualmie history and culture, legends and
religion, past and present, ld. The Tribe's Study speaks directly to many of the
issues raised in this proceeding:
• The creation story describes transformations attributable to Moon,
also named Snoqualm. ld., ER 492.
• The creation story explains "why everything in the universe
(plants, animals, fish, birds, forces and physical objects) could
communicate with one another and with human beings, and why
individuals sought spirit power from other creatures." ld.
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In 1980, non-reservation Snoqualmie Indians submitted a petition for federal
recognition, prepared with the assistance of Dr. Tollefson. AR 1, ER 245;
AR 26, ER 467. The Tulalip Tribes contested the petition. AR 1, ER 48.
During most of the Project's relicensing process, the petition was pending
before the Bureau of Indian Affairs; it was not until 1999 that the governmentgranted the petition. AR 1294, ER [p.3].
8 The mandatory criteria for federal recognition of tribes requires
demonstration that a predominant portion of the petitioning group has shared
sacred or secular ritual activities and that it has cultural patterns, includingreligious beliefs and practices, different from those of the non-Indian
populations with whom it interacts. See 25 C.F.R. § 83.7(b)(1)(vi)-(vii).
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• Spiritual powers were actively sought in all life forms and natural
features, ld., ER 495.
• The acquisition of powerful spirits demanded great fortitude:
"Warriors went up into the mountains to encounter the strongest
spirits of sympathetic animals who were willing to share their
power with worthy individuals." ld., ER 499.
The Tribe's Study does not ascribe any unique significance to the Falls in its
account of creation, ld. at ER 492-94. Other sources (e.g., Ballard; Tollefson)
identify the Falls as one of the natural features created by Moon (turning a fish
weir made of wood into a waterfall) and as one of many transformations.
AR 26, ER 471-483; AR 75, ER 664-697.
The Tribe's Study contains a thorough discussion of the Tribe's religious
beliefs and practices, traditional and more recent. AR 26, ER 492-513, 517-
564. Individual religious experiences are described as occurring in various
places, i.e., forests, mountains, prairies, and waterbodies. AR 26, ER 484-643.
The Tribe's Study does not indicate that religious practices focused on one
particular site. AR 26, ER 484-643.
The Falls is mentioned in the Tribe's Study as one of many features that
Moon created, along with the rivers, mountains, rocks, and other features of the
local environment of cultural and religious significance. 9 The Falls is not
9 ld., ER 494.
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characterized as a central source of spiritual power for tribal members. The
Tribe's Study also investigated "Snoqualmie Ethnic symbols" of current
relevance to tribal members. Id., ER 579-583. Symbols associated with
seeking spiritual power were ranked and prioritized, ld., ER 581. In this study,
there is no reference to the Falls as a current "ethnic symbol" or as a source of
spiritual power. Id., ER 579-583.
The Tribe's Study does not identify the Project as one of the challenges
faced by the Tribe in preserving its culture, although it traces societal influences
on the Tribe from the signing of the Point Elliott Treaty in 1855. The primary
challenges identified in the study are (1) the BIA's prohibition on Indian
spiritual healing practices in 1871 and (2) the modification of the longhouse
religion around a combination of Shaker and traditional Indian practices. Id.,
ER 517-69.
5. The Record Reflects Present-Day Evidence of the Tribe's
Use of the Falls for Religious Practices
To the extent the Falls is a feature of the Tribe's current religious practice,
the evidence shows that this characteristic of the Falls is not significantly
diminished by the Project.
In 1991, the Tribe sought to have the Falls determined to be eligible for
listing as a Traditional Cultural Property. AR 26, ER 461-469. A nomination
form was completed by the Tribe's anthropologist, Dr. Tollefson, the same
anthropologist who co-authored the Tribe's Study in 1986. ld. Dr. Tollefson
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surveyed tribal members who visited the Falls "to seek spiritual power, to
meditate or to find personal renewal." ld., ER 466. He concluded that the Falls
"continues to be an important cultural site to the Snoqualmie Tribe" for reasons
that include "a place of healing.., a place for tribal worship.., a place to
contact ancestors.., a place to acquire spirit power.., a bathing site for
spiritual cleansing." Id., ER 467. Thus, while the Tribe's Study suggests that
the Falls was not widely embraced as a current "ethnic symbol" or source of
spiritual power, the work Dr. Tollefson completed in support of the Traditional
Cultural Property nomination established that tribal members who visited the
Falls for religious and spiritual reasons found the experience to be significant.
Dr. Tollefson concluded:
Snoqualmie Falls has historical and contemporary integrity
forming a significant part of the cultural heritage of the
Snoqualmie Tribe. Even though some construction has
occurred at the Falls, it has not hindered the Snoqualmie
tribe from making extensive use of the Falls as the surveyquestionnaire mentioned earlier indicates.
d.
Interviews with tribal members conducted in 1988 indicated that some
found spirit power at the Falls or used the water there for purification before
ceremonial and other activities. AR 1, ER 245. In a 1993 article by
Dr. Tollefson and Martin L. Abbott, the authors determined that "presently, the
Falls provides a place for contemporary Snoqualmie to gather to pray, to
meditate, to worship, and to renew their contact with their ancestors and
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spiritual powers." AR 75, ER 666. According to the authors, "[t]his study
demonstrates that despite the presence of 1.5 million tourists who visit the Falls
each year, the Snoqualmie Indians still respect it as a sacred site and continue to
use it for their religious experiences." Id., ER 69.
Tribal members so advised FERC at public hearings. The tribal chairman
testified, "I use the Falls. I have done ceremonies down there. I do them
throughout the year." AR 111, ER 721. Another tribal member testified that
the Falls was sacred, despite the number of tourists and other impacts on the
sanctity of the site:
[T]o me, to my eyes, it's sacred. And to someone else sacred
has a different meaning to them. They may see something
different there than I do. And the million and a half people
that visit every year, they see it all differently. But they are
there to see and get their spirituality there, too, and it does
affect them, a lot of people. Spirituality at the falls, once
they see it and feel it and they are walking on that sacred
ground, it's there. It's at the falls.
AR 110, ER 715-716.
B. FERC Listened and Took the Tribe's Interest Into Account,
Weighing Those Interests in FERC's Relicensing Process
Throughout FERC's 13-year relicensing process, the Tribe was afforded
full status to participate and did participate in NHPA Section 106, 16 U.S.C.
§ 470f ("Section 106"), National Environmental Policy Act, 42 U.S.C. § 4321 et
seq. ("NEPA"), and FPA relicensing processes. This is evidenced by not less
than 41 filings made to FERC by or on behalf of the Tribe, more than any other
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intervening party. See Amended Certified Index to the Record (Feb. 23, 2006).
A partial description of the Tribe's participation, focusing on the Section 106
consultation, follows.
1. The Tribe Was Thoroughly Consulted in the
Pre-Applieation Process
In Volumes 4 and 5 of the Application, PSE provided a consultation
chronology for its pre-application process. AR 1, ER 74-209. The following
highlights a portion of these consultation activities:
• "The Tribe received the Project's initial consultation documents in
Spring 1989 and was invited to the initial consultation meeting on
May 31, 1989." ld., ER 227. A public meeting was held on July 12,
1989. ld.
• On August 14, 1989, PSE met with the Tribe's anthropologist and the
Tribal Council Secretary. ld., ER 85-86. Throughout the relicensing
process, PSE's cultural resource team engaged in numerous telephone
conferences, exchanged many letters and documents, and attended
several meetings with tribal representatives. See id., ER 74-141; AR
129, ER 727-941.
• In mid-1990, the Tribe was invited to meet with PSE and
representatives from FERC, Ecology, Washington State Department of
Fisheries ("WDFW"), Washington State Department of Wildlife, the
City of Snoqualmie, King County Parks, the National Park Service
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("NPS"), Washington State Parks and Recreation Commission, and
The Tulalip Tribes, among others, to discuss resource studies for
aesthetics, 1° recreation, land use, and socioeconomic factors. AR 1,
ER 90-91.
• On August 27, 1990, PSE met with tribal representatives to discuss
tribal concerns, including potential disruption to a reported tunnel
behind the Falls, recreational access to the Falls, installation of fish
screens, potential burial grounds, and arrangements for PSE to
interview Snoqualmie Elders. ld., ER 92-93.
• On September 19, 1990, the Tribe was invited to review and comment
on PSE's draft plan for evaluating aesthetic, recreation, land use, and
socioeconomic issues. Id., ER 94-96.
• On October 16, 1990, the Tribe was invited to review and comment on
PSE's Cultural Resource Overview for the Project. ld., ER 104.
• PSE coordinated with the Tribe to make a presentation to the
Snoqualmie Indian Council on November 24, 1990. Id., ER 106, 117;
173-74.
• On January 4, 1991 and February 19, 1991, PSE held a Project tour
and open meetings with the Tribe. Id., ER 130-141,229. At these
10 Throughout the relicensing process, religious interests in natural flows
were considered along with aesthetic and cultural resource review. See, e.g.,AR 1403-12.
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meetings, tribal members asked questions regarding Project economics
and operations, fisheries, development of an interpretive center,
possibility of selling tribal wares at the gift shop, identification of
sensitive cultural sites, location of recreational facilities, water rights,
and potential construction, ld.
On June 1, 1991, the Tribe held a vigil at the Falls "to raise awareness
and consciousness of our concerns" and to share its "position
statement" with the public, ld., ER 152.
On July 19, 1991, the Tribe and others attended a meeting with
representatives from PSE and Ecology. Discussion at the meeting
centered on aesthetic flows, Project economics, recreational use, and
religious practices. Id., ER 192-95.
On October 3, 1991, PSE and the Tribe met to discuss issues raised in
the comments on the draft application, ld., ER 187-88. The record of
this meeting reflects that the agenda was structured to discuss a
"fundamental disagreement.., over what the primary purpose of the
Snoqualmie falls should be--a sacred, cultural place, or a place for the
generation of electricity--and the extent to which these purposes can
co-exist." Id., ER 198. The mediator noted:
The Snoqualmie... oppose the existing hydropower
facility, as well as the proposed project additions, andmaintain that flows over the Falls should be restored to
their natural, pre-original project conditions. This
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fundamental disagreement leads to further disagreement
over many of the specific issues discussed[;] [t]he
participation of the Snoqualmie in the.., discussion
must, therefore, be understood in the context of this
fundamental disagreement.11
2. The Tribe Had Additional Consultation Opportunities
While FERC Considered PSE's Application
Consultation continued after the license application was filed. The post-
1991 consultation is documented in Volume 2 of PSE's Responses to FERC's
September 2, 1992 Request for Additional Information. AR 129, ER 862-65.
PSE consulted with the Tribe in the development of the Cultural Resources
Mitigation and Management Plan ("CRMMP") and the Historical Resources
Mitigation and Management Plan ("HRMMP"). See id.; AR 1060, ER 1490-
1583; AR 1061, ER 1584-I 655. Multiple drafts of these plans were circulated
to the Tribe for review and comments. The Tribe submitted written comments
regarding these plans, laY.
FERC issued its Draft Environmental Impact Statement ("DEIS") in
November 1994. AR 374, ER 988-1343. The Tribe responded to the DEIS
through written comments and oral testimony offered at public meetings held
near the Falls. See AR 375, ER 1344-45; AR 386, ER 1345-1400; AR 940, ER
1413-55; AR 941, ER 1456-71. FERC issued the Final Environmental Impact
Statement ("FEIS") in September 1996, recommending a minor refurbishment
11AR 1, ER 198.
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as the preferred alternative. AR 1074, ER 1962-68. In Appendix A to the
FEIS, FERC responded to the Tribe's comments. Id., ER 2004-43. FERC
subsequently entered into a Programmatic Agreement ("PA") with the State
Historic Preservation Officer ("SHPO") and the Advisory Council for Historic
Preservation ("ACHP") to implement the CRMMP and the HRMMP. AR 1062,
ER 1656-74.
3. FERC Responded to the Tribe's Comments, Adjusting
the Flow Regime and Development Activities to Protect
Sensitive Tribal Areas and Practices While Balancing
Other Compelling Interests
Prior to relicensing, Article 13 of the 1975 license required PSE to
"[d]ischarge a minimum flow of 100 cfs over Snoqualmie Falls during daylight
hours in order to maintain the scenic and aesthetic values of the Falls." 53
F.P.C. at 1667. Early in the pre-application consultation, the Tribe indicated a
need for flexible timing for spiritual use of the Falls, the importance of
continuous flows, and the value of privacy during spiritual activity. AR 1,
ER 60.
Licensing alternatives were subsequently developed and carefully
considered by FERC in the NEPA process. These included the "proposed
action" (PSE's proposal to increase the water diversion by an additional 1,500
cfs and to make major structural modifications), a minor upgrade (refurbishment
of the existing Project and a substantial increase in flows), and the Tribe's
preferred alternative (decommissioning or shutting down the Project). AR 374,
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ER 988-1343; AR 1074, ER 1675-2078. FERC ultimately recommended and
licensed the minor upgrade. AR 1074, ER 1962-68.
Other parties consulted included the National Marine Fisheries Service,
the U.S. Department of the Interior, the NPS, the U.S. Environmental Protection
Agency, the U.S. Army Corps of Engineers, the Washington State Office of
Archaeology and Historic Preservation, the SHPO, Ecology, WDFW, The
Tulalip Tribes, the Yakama Nation, the City of Snoqualmie, King County, the
Mountaineers, Cascade Chapter of the Sierra Club, American Whitewater
Affiliation, Northwest Rivers Council and Washington Trout. See AR 1294,
ER 2144-46. These entities provided comments with respect to minimum
instream flows, protection of historic and cultural resources, enhancement of
fish and wildlife resources, and provision of recreational opportunities. See,
e.g., AR 19, ER 444-48 (comments of Northwest Rivers Council regarding
recreation); AR 60, ER 659-61 (comments of Tulalip Tribe regarding cultural
resources); AR 1088, ER 2079-80 (comments of Department of Ecology
regarding minimum instream flows); AR 1227, ER 2081-2115 (comments of
NMFS regarding fish resources).
FERC considered the Tribe's substantial body of comments. In
responding to the Tribe's requests for additional analysis, FERC stated:
We reviewed your request for additional studies ....
[T]o determine the significance of Snoqualmie Falls as a
Snoqualmie Indian sacred site, PSE stated that Snoqualmie
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Falls is not a uniquely significant traditional Indian sacred
site. We concluded that sufficient information to analyze the
significance of Snoqualmie Falls to Native Americans isavailable.
[T]o determine the adequacy of the proposed flows for
religious, spiritual, or cultural purposes of Native
Americans, PSE stated that they have made "extraordinary
efforts to develop a proposal that takes Indian concerns into
account and causes as little disruption as possible to theirinterests." We concluded that sufficient information to
analyze the flow needs for the religious, spiritual and
cultural purposes of the Snoqualmie Indians is provided[.].
[Regarding] additional cost-benefit analyses,... [w]e
concluded that the cost-benefit analyses provided.., are
sufficient for us to balance the resources of the SnoqualmieRiver.
[Regarding] identify[ing] and consult[ing] with all Native
American peoples affected by the project,... [w]e concludedthat PSE has adequately identified and consulted with all
affected Indian Tribes[.]
AR 53, ER 644-48; see also AR 54, ER 649-53; AR 55, ER 654-58.
At the public hearing on NEPA scoping, the question of how FERC
should balance the various interests was posed to the Tribe's chairman:
The problem that we face.., is the weighing and balancing
of competing interests. Now, there is a power project that
has been there for a hundred years. There are a lot of peoplewho are getting benefit of cheaper electricity. There is an
environmental aspect of electric power that is developedwith some sort other than combustion. There is a million
and a half people--we saw some of them yesterday--that
come to the Falls for other purposes.
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Is there some way of accommodating your tribe's interests
short of simply removing the project or shutting down the
project completely?
AR 111, ER
Is there some middle ground that could be explored in the
environmental impact statement that would provide more
scope for the spiritual activities that you discussed without
excluding everybody else who has some use of the Falls?
724-25. The answer from the tribal chairman was "no."
I will answer your question in two ways. One is no. There
is no other way. The second part is that that's why we haveallied ourselves with the Greater Church Council and all of
these churches, so that as we try to explain to them in their
parishes and their various programs.., that they try to
understand what it is about us and why we see the place
being so sacred.., and hopefully they can interpret that for
their agencies and for Puget Power and everybody else that
this is the way it is. Actually, there is no other way.
ld., ER 725.
FERC was also presented with substantial and consistent evidence that
decommissioning the Project would harm or eliminate significant and
compelling public interests. AR 1, ER 14. "[S]ince the Snoqualmie Falls area
is currently developed for hydropower production, its continued use.., for
power production will result in less environmental impact than would occur
from construction of a new project at an undeveloped site." ld., ER 69.
Congress recently emphasized the need to preserve and enhance renewable
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energy resources, such as hydropower facilities. 12 FERC spoke directly to this
important interest in the FEIS:
Since 1898, the Snoqualmie Falls Project has been meeting
part of the region's power needs. Ifrelicensed, the project
would continue to meet part of the region's power needs and
maintain system reliability. Additionally, the project would
continue to displace fossil-fuel electric power generation the
regional utilities now use, and thereby conservenonrenewable fossil fuels and reduce the emissions of
noxious byproducts caused by the combustion of fossil fuels.
AR 1074, ER 1698. The Northwest Power Planning Council ("NPPC") also
spoke to the need for the Project:
The need for power consideration [identified in NPPC's
letter of February 12, 1992] have [sic] gained importance in
the intervening months. For example, we have imposed new
constraints on the Columbia River hydroelectric system toprotect salmon and steelhead and these constraints have
significantly reduced the amount of power available from
that system. There is a potential for further constraints to
protect other populations of fish and wildlife in the region.
In the meantime, load growth has continued and newresources are needed.
AR 130, ER 942-46. In addition to fulfilling a need for power, and advancing
the national energy policy encouraging the use and development of renewable
12In 2005, Congress enacted the Energy Policy Act of 2005, Pub. L. No.
109-58, identifying hydropower as a renewable resource and establishing
incentives for expanding and more efficiently using existing hydropower
resources (Sections 201,242).
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resources, the Project provides regional transmission support, reduces
dependency on transmission from the Columbia River, and increases overall
system reliability. AR 1074, ER 1698. The NPPC advised FERC that the
Project "has important reliability consequences" and "will directly address the
Puget Sound area voltage instability concerns currently being studied by the
Bonneville Power Administration." AR 130, ER 944-46. In reference to PSE's
1991 avoided cost of replacement power, the then net present value of the
existing Project over forty years was approximately $169,000,000. AR 1, ER 5.
There are additional compelling interests advanced by the Project. As
noted above, the Project provides a park and recreational amenities that attract
1.5 million people annually. The Project contributes substantial flood control
benefits for the upper Snoqualmie Valley, and provides significant fish and
wildlife enhancements. If the Project were decommissioned and the underlying
private lands sold to third parties for redevelopment, most if not all of these
public benefits would be in jeopardy, if not lost. See AR 1074, ER 1887-90.
C. FERC Decided That Issuance of a New License Was in the
Public Interest and Rejected the Tribe's Decommissioning
Alternative as Contrary to That Compelling GovernmentInterest
On June 29, 2004, FERC issued a new license for a minimally
refurbished Project. The License Order significantly enhanced flows over the
Falls:
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The primary issue raised in this proceeding is whether to
issue a new license for the continued operation and
maintenance of the Snoqualmie Falls Hydroelectric Project
conditioned on significantly greater protection and
enhancement of environmental resources and values, or to
deny the relicense application and require removal of theproject dam and other works, based on a determination that
the power benefits of the project are outweighed by the
cultural and spiritual benefits to the Snoqualmie Tribe of the
restoration of pre-project flows over Snoqualmie Falls.
AR 1294, ER 2155. FERC identified the Tribe's position "that any project
diversion of water compromises the sacred quality of the Falls" and that "only
totally natural flows will truly support their religious practices." Id.
(footnote 33). FERC considered the Tribe's argument that Project relicensing
would violate RFRA, but disagreed, stating:
If the project is retired, the resulting restoration ofpre-
project flows will provide the Snoqualmie with full spiritual
use of the Falls, and the power that the Snoqualmie Project
provides will be lost. On the other hand, if the project is
relicensed with the recommendations discussed in this order,
the Snoqualmie will still have spiritual use of the Falls,
albeit with somewhat less than the full flows they desire. On
balance, we conclude that the Project should be relicensed.
ld., ER 2158. FERC addressed the Tribe's concerns by, among other things,
"not authoriz[ing] development of the south side of the river below the Falls,
extension of the Preston-Snoqualmie Trail, or the building of a new pedestrian
bridge." /at. Any project modifications under the License Order "are to be
constructed so as to be invisible and inaudible at the sites where the Snoqualmie
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conduct their rituals on the south side of the fiver below the Falls." Id. Under
the License Order, FERC required PSE to provide minimum instream flows in
accordance with Ecology's WQC, which provided for the lesser of natural flows
or:
• 200 cfs between May 16 through May 31;
• 450 cfs in June;
• 200 cfs on weekends in July and August and on July 4, 100 cfs
daytime weekdays, and 25 cfs nighttime weekdays; and
• 100 cfs daytime and 25 cfs nighttime from September through May.
Id., ER 2160; AR 1245, ER 2121-32.13 FERC concluded that "while we are not
restoring the pre-project flows over the Falls, the new license requires flows
that will more closely mirror natural flows than did the prior license's flow
regime." AR 1294, ER'2158.
D. Tribe's Request for Rehearing and the First Rehearing Order
The Tribe requested rehearing and stay of the License Order on July 29,
2004. AR 1303, ER 2212-26. With respect to protection of religious practices,
the Tribe argued that FERC misapplied Lyng v. Nw. Indian Cemetery Protective
Ass'n, 485 U.S. 439 (1988). See id., ER 2213-16. According to the Tribe,
FERC erred in comparing the facts concerning the Project to those in Lyng and
a3 The one minor addition to the WQC flow regime adopted by FERC in
the License Order was to require 200 cfs day and night solely on Labor Day
weekend. AR 1294, ER 2162.
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the License Order "destroyed" flows. Id., ER 2213-14. The Tribe also asserted
that FERC had not adequately consulted with the Tribe on a government-to-
government basis pursuant to the NHPA. Id., ER 2217-25.
In the First Rehearing Order, FERC determined that the Tribe was
adequately consulted during the relicensing process. AR 1337, ER 2227-44.
FERC rejected the Tribe's argument that the new license would eliminate flows,
finding that the new license increased flows as compared to the existing
conditions. Id. FERC indicated that one of its reasons for increasing flows
"was consideration of the Tribe's need for flow-created mists." Id., ER 2234.
FERC determined that, under FPA Section 10(a), 16 U.S.C. § 803(a), it could
strike a different balance beyond that authorized in the WQC flow regime; it
amended its initial License Order to require PSE to provide the lesser of natural
flows or 1,000 cfs (daytime and nighttime) during the months of May and June.
Id., ER 2234-35.
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E. In Its Rehearing Orders, FERC Revised the Flow Regime
Established by Ecology's Water Quality Certification
1. Ecology Balanced Beneficial Uses of the Snoqualmie
River, Including Aesthetics and Hydropower Uses, in ItsWQC
During the WQC process, aesthetics was identified as a beneficial use of
the Falls pursuant to WAC 173-201A-030(1)(b)(v).14 Consideration of
aesthetics involved assessment of the appropriate level of water to flow over the
Falls. AR 1074, ER 1999. Ecology requested and reviewed various
information related to the Project's aesthetics, including:
• More information on aesthetic flows in order to allow Ecology "to
balance river values." AR 1, ER 209a-209h.
• A meeting with PSE "to begin a cooperative technical review of the
adequacy of Puget Power's public survey and aesthetic resources study
data for the Snoqualmie Falls Project." AR 18, ER 443.
• Additional time to complete further analysis. AR 25, ER 449.
• A public comment period. AR 854, ER 1401-402.
14 Washington State adopted revised water quality standards in June
2003; however, these rules can not be used for federal CWA actions until
approved by the EPA. 03-14-129 Wash. Reg. 72 (July 1, 2003). At the time
Ecology issued the WQC, EPA had not approved the revised standards;
therefore, the 1997 standards are applicable to the WQC. Ecology Surface
Water Quality Standards - Which Version of the Rule Do I Use?,
http://www.ecy.wa.gov/programs/wq/swqs/rev_rule.html (last visited July 12,2006).
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* Environmental review of instream flow issues that were "importan[t]
to the aesthetic integrity of Snoqualmie Falls." AR 855, ER 1406.
Ecology also provided its "potential conditions under consideration" for
FERC's review in the NEPA process. Ecology noted that the "flow regime was
developed in an attempt to balance public participation in the use and viewing
of Snoqualmie Falls with the existing use of Snoqualmie Falls as a source of
electrical power generation." AR 984, ER 1472. Ecology proposed minimum
instream flows, noting that the flows would "address components of the state
water quality standards in regard to beneficial uses such as recreation, aesthetics
and hydroelectric power production as specified in RCW 90.54.020." Id.,
ER 1473. Ecology stated it intended the flows
to maintain and protect the beneficial uses of the
Snoqualmie River. It should be noted that inclusion ofthese flows would be a consensual reduction in the
existing diversion of water for power generation in
accordance with the water right claim of the Applicant.Such reduction maintains the beneficial use of the
applicant's water right claims for the generation ofelectric power.
ld. Ecology adopted the FEIS for its WQC review. AR 1239, ER 2116.
On September 24, 2003, Ecology issued its WQC, setting out specific
instream flows. AR 1245, ER 2121. The Tribe challenged Ecology's WQC
determination for the Project through an appeal to the Washington State
Pollution Control Hearings Board ("PCHB"). AR 1279, ER 2133-42. The
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Tribe argued that only natural flows were appropriate and that the proposed
flow regime was not protective of tribal interests, ld., ER 2137. After a three-
day heating during which all aspects of Ecology's flow regime were scrutinized,
the PCHB affirmed Ecology's WQC for the Project. ld., ER 2133-42. The
state's WQC decision was reviewed by FERC. AR 1294, ER 2150.
2. PSE Appealed FERC's Revision of the WQC Flow Regime
On March 31, 2005, PSE requested rehearing of the First Rehearing
Order. AR 1345, ER 2245-61. PSE argued that the revised flow regime
conflicted with Ecology's WQC and was an invalid extension of authority under
the FPA in conflict with the requirements of the Clean Water Act. ld., ER
2245-61. PSE asserted that Ecology balanced competing beneficial uses of the
waterway as part of its WQC and that FERC lacked authority to upset the state's
balancing determination, ld.
In the Second Rehearing Order, FERC determined that it had jurisdiction
to consider and adopt "more stringent" water quality conditions as part of its
Section 10(a) authority under the FPA "except to the extent that the
Commission's resulting license conditions may conflict with those of the
[WQC]." AR 1359, ER 2264-65.
V. STANDARD OF REVIEW
Under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"),
FERC's decision will be upheld unless it is "arbitrary, capricious, an abuse of
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discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A);
Cal. Dep't of Water Res. v. FERC, 341 F.3d 906, 910 (9th Cir. 2003) (citing
Steamboaters v. FERC, 759 F.2d 1382, 1388 (9th Cir. 1985)). An agency's
decision is arbitrary and capricious if
the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation forits decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983).
In reviewing the decision of an administrative agency, a court is limited
to record review of the evidence that was presented in a formal adjudicative
process. See U.S. Dep't ofInterior v. FERC, 952 F.2d 538 (D.C. Cir. 1992);
Cooley v. FERC, 843 F.2d 1464, 1472-73 (D.C. Cir. 1988). Where substantial
evidence supports FERC's finding, the agency's finding of fact is a verity.15 16
15 The substantial evidence review of Section 825l applies to all facts
found by FERC, including those concerning power, environmental, or other
matters. See U.S. Dep't of Interior, 952 F.2d at 545 (applying substantial
evidence test to FERC findings regarding Section 10(j) recommendations).
Similarly, findings regarding constitutionally protected rights are also reviewed
under the substantial evidence standard. See Information Providers' Coalition
for Defense of First Amendment v. Fed. Commc'ns Comm'n, 928 F.2d 866 (9th
Cir. 1991) (applying substantial evidence review to FCC's findings regarding
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U.S.C. § 825/(b) ("[T]he finding of the Commission as to the facts, if supported
by substantial evidence, shall be conclusive."); Bear Lake Watch, lnc. v. FERC,
324 F.3d 1071, 1076 (9th Cir. 2003). Substantial evidence has been found to
mean "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." BearLake Watch, 324 F.3d at 1076.
VI. SUMMARY OF THE ARGUMENT
FERC considered and acted appropriately with respect to the Tribe's
religious interests. First, under RFRA, 16 government actions may burden
religious practices where that burden is not substantial, i.e., where the action
does not pressure the adherent to take action forbidden by or prevent the
adherent from engaging in conduct mandated by that religion. Goehring v.
Brophy, 94 F.3d 1294, 1299 (9th Cir. 1996). Second, where a government
action is found to substantially burden mandated religious practices, the action
does not violate RFRA where (i) compelling government interests are advanced
and (ii) the action represents the least restrictive means of achieving those
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compelling interests and least restrictive means in the context of a First
Amendment challenge).
16This Court applies the test of Sherbert v. Verner, 374 U.S. 398 (1963),
with respect to both RFRA and First Amendment free exercise of religion
claims. See Bollard v. Cal. Province of the Soc'. of Jesus, 196 F.3d 940, 946
(9th Cir. 1999). Because the Tribe's Brief addresses claims only under RFRA
(see, e.g., Tribe's Brief at 3 ("Questions Presented for Review")), PSE's
argument herein is presented with respect to RFRA. Nevertheless, the
arguments herein also apply under First Amendment analysis.
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purposes. 42 U.S.C. § 2000bb-l(b). Here, as FERC determined in its License
Order, the Tribe's religious practices are not substantially burdened, and thus
this portion of the Decision should be affirmed. However, even if the Decision
substantially burdened free exercise, which it does not, the Decision advances
compelling government interests in maintaining and enhancing the many public
benefits provided by the Project and by providing the least restrictive means of
achieving those interests. Third, substantial evidence supports FERC's findings
of fact that the Tribe's religious practices are not substantially burdened, that
there are compelling interests in Project relicensing, that the flow regime in the
License Order was the least restrictive means of addressing such interests, and
that decommissioning the Project was not a reasonable restriction to achieve
that purpose.
While the License Order appropriately evaluated the Tribe's religious
interests, FERC's Reheating Orders unlawfully adopted an aesthetic
accommodation that revised the Project's flow restrictions in conflict with the
WQC. The CWA delegates water quality review to the states, and FERC is
required to incorporate state WQCs into its license orders. PUD No. i of
Jefferson County v. Wash. Dep't of Ecology, 511 U.S. 700 (1994).
Washington's WQC review process requires the balancing of beneficial uses,
including aesthetic and hydropower uses, in a manner that does not degrade
existing beneficial uses. 33 U.S.C. § 1313(d)(4)(B); RCW 90.54.020(3); WAC
173-201A-070. By requiring more water flow for aesthetic purposes, FERC has
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degraded the existing hydropower beneficial use, upsetting the balance struck
by Ecology in its WQC.
VII. ARGUMENT
Au FERC's License Order Does Not Substantially Burden the
Tribe's Religious Practices
This Court has held that, to establish a RFRA violation,
"the religious adherent,.., has the obligation to prove that a
governmental regulatory mechanism burdens the adherent's
practice of his or her religion by pressuring him or her to
commit an act forbidden by the religion or by preventing him
or her from engaging in conduct or having a religious
experience which the faith mandates. This interference must
be more than an inconvenience; the burden must be
substantial and an interference with a tenet or belief that is
central to religious doctrine."
Goehring, 94 F.3d at 1299 (emphasis omitted) (quoting Graham v. Comm'r, 822
F.2d 844, 850-51 (9th Cir. 1987), affdsub nom. Hernandez v. Comm'r, 490
U.S. 680 (1989)). This Court has found a substantial burden where the
government's action "'results in the choice to the individual of either
abandoning his religious principle or facing criminal prosecution.'" Guam v.
Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002) (internal quotations and
citations omitted).
The Decision will ensure the Tribe's access to the Falls for another
40 years and provide an increase in flows over the Falls beyond the existing
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conditions. 17 These enhanced flow requirements more closely mirror natural
variations in flows and provide consistently higher flows throughout the year
that mimic seasonal variations while still achieving the FPA's objective of
authorizing use of federal waters for renewable power.iS
The Tribe's contention that nothing but decommissioning will protect its
religious practices runs contrary to the evidence. Since 1898, the Tribe has
continued to practice its religion at the Falls. The record demonstrates that use
of the Falls for hydroelectric purposes has not "desecrated" the Falls. The Falls
is still held sacred by tribal members and continues to be used for religious
purposes. See AR 1, ER 247; AR 75, ER 682-695; AR 110, ER 715-16;
AR 941, ER 1456-71; AR 992, ER 1481. The License Order enhances the
continuation of these religious practices; it does not create a greater burden, nor
does it require the Tribe to undertake any actions contrary to its religion.
The Tribe has not established that the proposed enhancement of flows
over the Falls "impose[s] a substantial burden on a central tenet of their
17 The existing project conditions provide the baseline for evaluating the
environmental impacts of the relicensing action under the NEPA. American
Rivers v. FERC, 201 F.3d 1186, 1195-99 (9th Cir. 2000) ("American Rivers I1").
_8 The provision of increased flows results in a net loss in generation of
over 3.5% per year. AR 1279, ER 2137. The First Rehearing Order would
provide between 550 to 975 cfs of additional flows during the months of May
and June beyond that required in the License Order, resulting in a furtherdecrease. AR 1337, ER 2235.
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religion," or that practices including experience of natural flows "are mandated
by [its] faith." Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995). The Falls is
not the only site at which tribal members engage in religious practices, nor is it
a more necessary element than other aspects of the natural environment.
According to the Tribe's studies, many locations are utilized for religious
practices. AR 1, ER 253.
In Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996), cert. denied, 519 U.S.
821 (1996), the Tenth Circuit addressed government impacts on traditional
Indian religious practices in the context of RFRA. The issue was whether a
proposed condemnation of property for a highway project that would require the
property owners, American Indians, to relocate their daughter's gravesite
violated RFRAJ 9 The court determined it did not:
While the Thirys establish that they will be both distressed
and inconvenienced over the relocation of their daughter's
gravesite and loss of access to that particular site itself, they
also testified that they will still continue their religious
beliefs and practices even if the condemnation proceeds as
planned. They concede that they have worshipped, prayed,
t9 In Thiry, the Tenth Circuit examined the actions of state and local
agencies, prior to the U.S. Supreme Court's ruling finding that application of
RFRA to state and local actions was unconstitutional in City ofBoerne v.Flores, 521 U.S. 507 (1997). In City of Boerne, the Supreme Court determined
that Congress exceeded its authority in applying RFRA to the states through its
enforcement powers under Section 5 of the Fourteenth Amendment. However,
RFRA is still applicable to federal actions. Guerrero, 290 F.3d at 1221.
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and drawn near to God in places other than the gravesitearea.
Thiry, 78 F.3d at 1495 (citation omitted). Likewise, the Tribe has continued to
worship, pray, and practice its religion at the Falls. The Tribe has not
demonstrated that it cannot accomplish the mandates of its religion under the
License Order. 2°
A federal action substantially burdens the free exercise of religion when
it prohibits an individual's religious practice or requires an individual to take
action contrary to his or her religion. Goehring, 94 F.3d at 1299. As FERC
determined in the License Order, RFRA does not prohibit a "situation in which
the Government took some action which incidentally affected the quality of an
individual's religious experience." AR 1294, ER 2157. FERC reached this
decision on review of the strict scrutiny cases that apply under RFRA, including
Sherbert v. Verner 21 and Wisconsin v. Yoder, 406 U.S. 205 (1972). 22 ld. (note
42). FERC found that, under the new license, "the Snoqualmie will still have
spiritual use of the Falls, albeit with somewhat less than the full flows they
desire." ld., ER [p. 16].
20 The religious adherent bears this burden under RFRA. Goehring, 94F.3d at 1299.
21 374 U.S. 398 (1963).
22 406 U.S. 205 (1972).
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The Tribe has not carried its burden to demonstrate that the Decision will
substantially burden its exercise of religion.
B. Additionally, Even if the Decision Were Deemed to
Substantially Burden the Tribe's Religious Practices, FERC
Correctly Applied and Satisfied the RFRA Test
If a federal action does not substantially burden religious practices central
to a person's religion, the action does not violate RFRA. FERC has found that
the License Order does not substantially burden the Tribe's religious practices,
and this portion of the Decision should be affirmed.
If, contrary to the Decision, this Court were to find such a burden, the
Decision still must be upheld because it met the "strict scrutiny" test of RFRA.
1. FERC Determined that Compelling Interests Were
Advanced by the Least Restrictive Means
The Tribe argues that FERC failed to apply RFRA's strict scrutiny test.
Tribe's Brief at 22-25. This is incorrect. In addition to citing Lyng v. Northwest
Indian Cemetery Protective Association, 23 FERC applied the test articulated in
23 485 U.S. 439 (1988). FERC cited Lyng apparently in response to the
Tribe's First Amendment claims raised in its Request for Rehearing & Request
for Stay. AR 1303, ER 2213-216. In its Request, the Tribe did not argue that
Lyng provided an inappropriate standard for analyzing its claims, but rather
contended that the case was inapposite based on its facts. Id. Regardless of
whether the principles in Lyng are relevant to this matter, FERC applied the
compelling interest test adopted by the Ninth Circuit in addressing the Tribe'sRFRA claims.
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Sherbert v. Verner. 24 AR 1294, ER 2157 (note 42). FERC specifically stated
that RFRA was intended to restore this test. Id. Finally, FERC correctly stated
that RFRA requires that "Federal activities which inhibit the free exercise of
any religion must satisfy a compelling Government interest and must be the
least restrictive means to accomplish this purpose." ld., ER 2157 (note 41).
This approach complies with Ninth Circuit precedent analyzing both First
Amendment free exercise claims generally and RFRA claims in particular. See
Goehring, 94 F.3d at 1298 (analyzing a First Amendment free exercise claim
under the RFRA framework and applying the strict scrutiny test); see also Droz
v. Comm'r, 48 F.3d 1120, 1122 (9th Cir. 1995) (applying the test in analyzing a
RFRA claim).
The License Order employs the strict scrutiny test. In paragraph 37, three
compelling governmental interests are identified. First, FERC states that the
project, ifrelicensed as proposed, would provide electricity responding to the
need for generation resources in PSE's service area. AR 1294, ER 2157. FERC
was aware of a growing demand for additional resources in the region, and of
the stability and reliability the Project contributes to the regional transmission
system. AR 1, ER 69. Second, FERC found that relicensing the Project would
serve "the public interest by reducing the use of fossil-fueled, steam-electric
generating plants, thereby conserving nonrenewable energy resources." AR
Z4 374 U.S. 398 (1963).
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1294, ER 2157. FERC was aware of the need to preserve renewable resources,
especially in light of constraints on the Columbia River hydroelectric system
that are in place for the production of salmon and steelhead, ld. Third, FERC
found that the Project would reduce atmospheric pollution, ld.
Meeting the demand for electricity with clean, renewable resources,
supporting the regional transmission system, and reducing dependence on fossil
fuels are all compelling government interests. "The federal government has a
significant economic stake in the development of energy resources within its
borders," which can "outweigh[] the alleged interference with the plaintiffs'
religious beliefs." lnupiat Cmty. of Arctic Slope v. United States, 548 F.Supp.
182, 188 (D. Alaska 1982), affd, 746 F.2d 570 (9th Cir. 1984) (applying the
First Amendment test of Wisconsin v. Yoder to a tribe that sought to quiet title
to land for religious purposes where government proposed lease-sale of lands
for off-shore oil uses); see also 16 U.S.C. § 797(a); Georgia Power Co. v.
Sanders, 617 F.2d 1112, 1120 (5th Cir. 1980) ("The specific federal interests or
policies which may be identified under the Federal Power Act are
1) maximization of hydroelectric development, 2) reduced energy costs and
3) minimization of cost to the government should it decide to exercise its option
to acquire a project .... ").
Preservation of the other public benefits provided by the Project (i.e.,
flood control, recreation, and fish and wildlife benefits) is also a compelling
interest. The FPA entrusts to FERC the balancing of various public values
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related to the use of federal waterways. Under Section 10(a) of the FPA,
Congress charges FERC with evaluating license applications to determine
[t]hat the project adopted.., shall be such as in the
judgment of the Commission will be best adapted to a
comprehensive plan for improving or developing a waterway
•.., for the improvement and utilization ofwateropower
development, for the adequate protection, mitigation, and
enhancement of fish and wildlife..., and for other
beneficial public uses, including irrigation, flood control,
water supply, and recreational and other purposes[.]
16 U.S.C. § 803(a). Here, FERC considered the Tribe's religious interests along
with other competing interests in setting the terms and conditions in the License
Order.
FERC also found that relicensing the minor upgrade (rather than the
expanded project initially proposed) would be the least restrictive means of
advancing compelling governmental interests. The alternative advanced by the
Tribe was to decommission the Project. In balancing the interests of the Tribe
in retiring the Project with the region's need for power and the Project's other
public benefits, FERC acknowledged that decommissioning the Project would
provide the Tribe with "full spiritual use of the Falls," but noted that "the power
that the Snoqualmie Project provides will be lost." AR 1294, ER 2157. In
determining to relicense the Project, FERC noted that "the Snoqualmie will still
have spiritual use of the Falls, albeit with somewhat less than the full flows they
desire." Id.
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FERC narrowly tailored the License Order to address the Tribe's religious
interests. For example, the Decision prohibits development of the south side of
the river below the Falls (an area used by the Tribe for religious practices),
extension of a recreational trail, and the building of a new pedestrian bridge.
ld., ER 2157. The License Order requires that any Project modifications be
constructed "so as to be invisible and inaudible at the sites where the
Snoqualmie conduct their rituals on the south side of the river below the Falls."
ld. Finally, "the new license requires flows that will more closely mirror natural
flows than did the prior license's flow regime." ld.
Thus, the License Order documents FERC reasoned decision of how best
to meet the compelling governmental interests of providing clean, renewable,
and affordable energy while placing the least restrictions on the spiritual
practices of the Tribe. The only alternative acceptable to the Tribe--
decommissioning the Project--would not achieve the comprehensive balancing
to be attained under FPA Section 10(a).
As this Court has said, "To maintain an organized society that guarantees
religious freedom to a great variety of faiths requires that some religious
practices yield to the common good. Religious beliefs can be accommodated,
•.. but there is a point at which accommodation would radically restrict the
operating latitude of the legislature.'" Goehring, 94 F.3d at 1301 (quoting
United States v. Lee, 455 U.S. 252, 259 (1982) (internal quotations and citations
omitted)). FERC found that the Tribe's request to eliminate the Project
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amounted to an unjustified restriction, not a reasonable accommodation.
FERC's balancing of competing objectives and conditioning of the license to
address the Tribe's religious interests show that the agency correctly applied the
RFRA test to arrive at the least restrictive means to accomplish governmental
purposes.
2. Substantial Evidence Supports FERC's Findings on
Compelling Interests, Free Exercise, Least Restrictive
Means, and Balancing Determination
During the course of this 13-year relicensing proceeding, FERC was
provided with a voluminous record, and FERC undertook an extensive analysis
of the various power and non-power values presented in this case. This
included extensive analysis of minor refurbishment and decommissioning
alternatives on the religious practices of the Tribe. AR 1074, ER 1909-918.
The Tribe's interests were not the only values to be addressed. FERC identified
four principal resource issues to balance in its license: (1) protection of the
Falls as a cultural resource important to local Native Americans; (2) aesthetic
effects of different instream flows over the Falls; (3) a need to reduce chronic
flooding problems in and around the City of Snoqualmie; and (4) the regional
need for cost-effective, nonpolluting, renewable energy. Id., ER 1919. It
determined that "fully resolving one of these issues may compromise the
resolution of others" and, therefore, looked instead to various flow options to
respond to the Tribe's concerns. Id. Throughout the relicensing process,
between 100 and 200 different flow proposals were considered. AR 1279,
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ER 2137. FERC ultimately found that the Tribe's religious practices continued
at the Falls under existing conditions and the new license would improve upon
those conditions. AR 1074, ER 1931; AR 1294, ER 2155-158. 25 Substantial
evidence supports FERC's determination that the Tribe's shutdown request
could not be accepted and its finding that providing more natural flows that
preserved some generation was the least restrictive means of addressing the
Tribe's religious practices.
C. FERC Complied With NHPA's Consultation Requirements and
Its Regulations During the Relieensing Process
1. The Tribe Was Properly Consulted Under Section 106 ofthe NHPA
The Tribe was properly consulted in accordance with Section 106 during
the relicensing process. Section 106 requires that an agency take into account
the effects of its activities and programs on historic properties, including
traditional or cultural interests of tribes. 16 U.S.C. § 470f; see also 36 C.F.R. §
800.2(c)(2)(ii)(A) (consultation to provide "a reasonable opportunity to identify
25 FERC's conclusion in the FEIS states: "It is clear from statements
made by the Snoqualmie People and in the Snoqualmie Falls Traditional
Cultural Property nomination form that Snoqualmie Falls maintains value as a
spiritual resource under existing conditions .... Though fully restored natural
flows would be the preferred option from a cultural perspective, we believe that
enhancing existing waterfall flows, even during limited times of the year, wouldbe beneficial." AR 1074, ER 1931.
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its concerns.., and participate in the resolution of adverse effects"). 26 This
Court has found that the NHPA's consultation requirements are comparable to
the procedural obligations of the NEPA:
"Both [NHPA and NEPA] create obligations that are chiefly
procedural in nature; both have the goal of generating
information about the impact of federal actions on the
environment; and both require that the relevant federal
agency carefully consider the information produced. That is,
both are designed to insure that the agency 'stop, look, and
listen' before moving ahead."
San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005)
(quoting Pres. CoaL, Inc. v. Pierce, 667 F.2d 851,859 (9th Cir. 1982)).
The record establishes that the Tribe was presented with over a decade of
opportunities to provide FERC with relevant information. The Tribe was
invited to meet with various agencies involved in the relicensing process,
including FERC, to discuss resource studies for aesthetics, recreation, land use,
and socioeconomic factors. AR 1, ER 90-91. The Tribe participated in
26 The NHPA only requires consultation with tribes formally recognizedby the federal government. 36 C.F.R. § 800.16(m) ("Indian tribe" means a tribe
"recognized as eligible for the special programs and services provided by the
United States to Indians because of their status as Indians"). The consultation
and programmatic agreement processes were completed in 1997, before the
Tribe was federally recognized in 1999. Nevertheless, FERC consulted with the
Tribe; "its views were sought, discussed, and considered in the NHPA
consultation and in development of the programmatic agreement, and it was
offered the opportunity to sign the programmatic agreement as a concurringparty." AR 1337, ER 2230.
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numerous public meetings and was invited to review and comment on numerous
documents, including a plan for evaluating aesthetics, recreation, land use, and
socioeconomic issues; a Cultural Resources Overview; the draft license
application; the DEIS; the FEIS; the CRMMP; and the HRMMP. As noted
above, the Tribe's participation in this proceeding was frequent, thorough, and
zealous.
The Tribe likens FERC's consultation efforts to those found inadequate in
Pueblo ofSandia v. United States, 50 F.3d 856 (10th Cir. 1995). However, the
situation in Sandia is inapposite. In Sandia, the agency had very limited contact
with the tribe, which consisted of a single form letter and a one-time request for
information from the tribal council, ld. at 860-62. In addition, despite contrary
evidence, the agency in Sandia concluded that the property did not have the
requisite cultural significance to be eligible for inclusion in the National
Historic Register. ld. Finally, the agency in Sandia withheld relevant
information from the SHPO. ld.
In contrast, here the Tribe was consulted during the relicensing process
on numerous occasions. Neither FERC nor PSE disputes that the Falls has
cultural significance to the Tribe, and no relevant information has been
withheld. Rather, the dispute concerns the degree of mitigation and
accommodation afforded to the Tribe's interests. The Tribe is, in essence,
arguing that because it disagrees with FERC's decision, consultation was
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inadequate. This Court rejected a similar argument in Muckleshoot lndian
Tribe v. U.S. Forest Service, 177 F.3d 800 (9th Cir. 1999).
FERC complied with the consultation requirements of the NHPA and
took into account the Tribe's assertions in its development of a PA and its
issuance of the License Order. The CRMMP requires PSE to (a) provide
increased flows over the Falls; (b) make minimal changes to existing facilities;
(c) explore preservation of potential longhouse sites; (d) design new Project
elements to confine visitors to designated areas; (e) provide dispersed
interpretive displays with information on Native American spiritual beliefs and
the cultural importance of the Falls, to be developed in consultation with the
Tribe, The Tulalip Tribes, and the Yakama Nation; and (f) meet with the Tribe
to develop ways to incorporate Native American dancing and craft
demonstrations into the Project. AR 1061, ER 1636-644.
Upon review of these management plans, the Washington SHPO, the
ACHP, and FERC signed a PA for managing historic and cultural properties.
AR 1062, ER 1656-674; see 36 C.F.R. § 800.14(b). The PA addresses the
traditional cultural properties identified by the Tribe through the
implementation of the CRMMP and HRMMP, and before its federal
recognition, the Tribe was invited to sign the PA as a concurring party.
AR t062, ER 1657-658.
Thus, the record establishes that the Tribe was consulted. FERC took the
Tribe's concerns into account and issued the License Order, which incorporated
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the findings of the NHPA process as set forth in the PA. AR 1294, ER 2164-
2165. FERC fully complied with its Section 106 consultation requirements.
2. ACHP Regulations Allow an Agency to Delegate
Consultation Activities to an Applicant While Retaining
the Agency's Ultimate Decision-Making Authority
The Tribe cites to National Park Service, National Register Bulletin 38,
Guidelines for Evaluating and Documenting Traditional Cultural Properties
(1990) as authority for the proposition that the agency must directly consult
with tribes without the use of a consultant or applicant intermediary. Tribe's
Brief at 64-66. However, the NHPA implementing regulations specifically
authorize an agency to "authorize an applicant.., to initiate consultation with
the SHPO/THPO and others." 36 C.F.R. § 800.2(c)(4). 27 Indeed, that is what
occurred here. To protect the Tribe's privacy, FERC issued a restricted service
list for sensitive cultural resource communications, limiting distribution to
FERC, the Tribe, ACHP, NPS, the SHPO, The Tulalip Tribes, Yakama Nation,
and Dr. Tollefson. AR 369, ER 985-87. Moreover, FERC did not rely solely
on PSE's presentation of cultural resource evidence. Consulting parties,
including the Tribe and ACHP, communicated their comments on the HRMMP,
27 "Others" as used in 36 C.F.R. § 800.2(c)(4) is comparable to the use of
"other consulting parties" in the regulations, which include Indian tribes. See,
e.g., 36 C.F.R. § 800.2(c)(2)-(3).
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CRMMP, and PA to FERC. See, e.g., AR 360, ER 980-84; AR 992, ER 1486-
FERC's Ex Parte Rules Discourage Direct, Off-the-Record Consultation Between FERC and Tribes
Contrary to the Tribe's argument that consultation under the NHPA or
FERC's own regulations requires direct discussions between an agency and a
tribe to satisfy government-to-government consultation requirements, 28 the
Presidential Executive Memorandum of April 29, 1994 describing
"Govemment-to-Government Relations With Native American Tribal
Governments" provides otherwise. 59 Fed. Reg. 22,951. This memorandum
states:
Each executive department and agency shall consult, to the
greatest extent practicable and to the extent permitted by
law, with tribal governments prior to taking actions that
affect federally recognized tribal governments. All such
consultations are to be open and candid so that all interested
parties may evaluate for themselves the potential impact of
relevant proposals.
Id. at 22,952. FERC's regulations provide for govemment-to-govemment
consultation but also recognize that the APA limits its ability to engage in direct
contact with tribes during the proceeding. 18 C.F.R. § 2.1 c(d), (j); see also In
28 See Tribe's Opening Brief at 60-61.
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re Hydroelectric Licensing Under the Federal Power Act, 102 FERC ¶ 61,185,
at ¶ 114 (2003).
Because the Tribe was a party to a pending proceeding, it would have
been unlawful for FERC to have direct, off-the-record contact with tribal
representatives. 18 C.F.R. § 385.2201(b).
D. FERC's Subsequent "Adjustment" to the Flow Regime in the
Rehearing Orders Conflicts With the CWA and Is Not
Supported by Substantial Evidence
As FERC recognized in the License Order, "Section 401 (d) of the CWA
provides that the [water quality certification of the State certifying agency] shall
become a condition on any federal license or permit that is issued." AR 1294,
ER 2150 (citing 33 U.S.C. § 1341 (d)) (emphasis added). In the First Rehearing
Order, FERC amended the WQC flows, stating that it could adopt "more
stringent" water quality measures. However, this "adjustment" does not merely
augment the WQC; rather, it denigrates other beneficial uses and in so doing
violates the CWA. The FPA does not authorize FERC to pick and choose
among the beneficial uses to be protected in a WQC. Moreover, FERC acted
without substantial evidence.
1. FERC's Rehearing Orders Impermissibly Interfere With
Ecology's Delegated Federal Authority to Regulate
Water Quality
Section 401 of the CWA provides that "[a]ny applicant for a Federal
license or permit to conduct any activity.., which may result in any discharge
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into the navigable waters, shall provide the licensing.., agency a certification
from the State in which the discharge originates or will originate." 33 U.S.C.
§ 1341 (a)(1). The certification provides conditions that ensure the proposed
discharge will comply with the applicable water quality standards. 33 U.S.C.
§ 1341(d). Ecology is the Washington State agency responsible for issuing
such certifications. RCW 90.48.260; Ch. 173-225 WAC.
The WQC is a critical component of the CWA's state-oriented regulatory
framework. The U.S. Supreme Court recently reaffirmed that the obligation to
determine the risks of water discharges and the release of water through
turbines is a duty that falls "within a State's legitimate legislative business" and
that "[s]tate certifications under § 401 are essential in the scheme to preserve
state authority to address the broad range of pollution." S.D. Warren Co. v. Me.
Bd. ofEnvtl. Prot.,U.S. __, 126 S. Ct. 1843, 1853 (2006). The CWA
expressly recognizes that water "pollution" may result from "changes in the...
flow.., of any navigable waters." 33 U.S.C. § 1314(f). To the extent that
discharges affect flows, this effect may constitute "pollution," and "lilt is the
policy of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution."
33 U.S.C. § 1251(b) (emphasis added).
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a. Under the CWA, Conditions in a WQC MustBecome a Condition of a FERC License
When FERC has attempted to depart from state-imposed WQC
conditions, federal courts have consistently held such actions contrary to the
plain language of CWA Section 401 (d), which provides that "'[a]ny certification
provided under this section.., shall become a condition on any Federal license
or permit subject to the provisions of this section.'" Am. Rivers, Inc. v. FERC,
129 F.3d 99, 107 (2d Cir. 1997) ("American Rivers I'_ (emphasis omitted)
(citation omitted). As the Second Circuit held in American Rivers I:
This language is unequivocal, leaving little room for
FERC to argue that it has authority to reject stateconditions it finds to be ultra vires. Rather... to the
extent that the Commission contends that Congressintended to vest it with authority to reject "unlawful" state
conditions, the Commission faces a difficult task since it is
generally assumed--absent a clearly expressed legislative
intention to the contrary--"that Congress expresses its
purposes through the ordinary meaning of the words ituses .... "
Id. at 107 (quoting Escondido Mut. Water Co. v. La dolla Band of Mission
Indians, 466 U.S. 765, 772 (1984)).
FERC's own precedent contradicts the action taken by FERC in this
proceeding. FERC has consistently held that:
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[S]tate certification shall become a condition on any federal
license or permit that is issued. Only a reviewing court canrevise or delete these conditions. 29
See also Am. Rivers I, 129 F.3d at 103, 107-08 (citations omitted) (holding
FERC is required to include in its licenses all conditions imposed by state
certifications, even where, in FERC's opinion, such conditions exceed a state's
Section 401 authority).
b. FERC Cannot Rely on FPA Section 10(a) to Amend
a Condition in a WQC and Thereby Usurp
Ecology's Authority Under the CWA
FERC's purported authority for changing the terms of the WQC in this
case is Section 10(a) of the FPA. AR 1294, ER 2150. No such authority exists.
FERC may not rely on Section 10(a) to change the terms and conditions of a
WQC. See PUD No. 1 of Jefferson County, 511 U.S. at 722-23 (noting Court's
unwillingness to imply limitations into CWA Section 401).
FERC's conclusion that the revised flows create no water quality conflict
presumes that FERC is the appropriate agency to make this determination.
FERC is not the agency authorized to make this assessment. FERC has lost
similar CWA Section 401 arguments. In American Rivers I, FERC argued that
Vermont's certification conditions on a hydroelectric project would conflict
29 Wis. Pub. Serv. Corp., 110 FERC ¶ 62,215, 2005 WL 510778 at * 1
(2005) (footnote omitted); see also City of Norway, Mich., 110 FERC ¶ 62,011
(2005); PCA Hydro lnc., 110 FERC ¶ 62,010 (2005).
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with the FPA by prescribing construction deadlines and including reopener
provisions. Id. at 111. FERC argued that such state WQC conditions would
interfere with FERC's FPA responsibility to administer licenses. Id. The Court
rejected FERC's argument. 129 F.3d at 111-12. As the District of Columbia
Circuit held in Alabama Rivers Alliance v. FERC, 325 F.3d 290, 292-93 (D.C.
Cir. 2003),
Although "the FPA represents a congressional intention to
establish 'a broad federal role in the development and
licensing of hydroelectric power,'" the CWA "has diminished
[the FPA's] preemptive reach by expressly requiring the
Commission to incorporate into its licenses state-imposedwater quality conditions." FERC's hydroelectric licenses are
thus subject to, among other conditions, the requirements ofsection 401 of the CWA.
(Internal citations omitted.) See also Am. Rivers 11, 201 F.3d at 1207 ("[w]e
reject the Commission's vision of its absolute role in relicensing.");
Monongahela Power Co. v. Marsh, 809 F.2d 41, 50 (D.C. Cir. 1987) ("we can
conclude only that the [FPA] does not provide adequate justification for
ignoring the express and unambiguous directive of the subsequently-adopted"
[CWA] amendments.); Appalachian Power Co. v. United States, 607 F.2d 935,
941 (1979), ("the Federal Power Act is not immune from effects of other
subsequent acts of Congress").
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c. FERC's Revision to Required Flows Directly
Conflicts With Ecology's Authority and Its
Application of the State Antidegradation Policy
FERC's "adjustment" of Ecology's WQC is not only without authority, it
is in degradation of other beneficial uses and therefore inconsistent with
adopted state water quality standards. Ecology, not FERC, is authorized to
apply these standards, and the WQC was a final and binding order of Ecology.
33 U.S.C. § 1341; RCW 90.48.260.
Under the CWA, states must adopt an antidegradation policy requiring
that existing beneficial uses of the federal waterway be maintained and
protected. 40 C.F.R. § 131.12. Implementing the CWA policy is within
Ecology's authority, not FERC's authority. Id. In PUD No. 1 of Jefferson
County, the U.S. Supreme Court held that
States must implement their antidegradation policy in a
manner "consistent" with existing uses of the stream. The
State of Washington antidegradation policy in turn provides
that "[e]xisting beneficial uses shall be maintained and
protected and no further degradation which would interfere
with or become injurious to existing beneficial uses will be
allowed." WAC 197-301-035(8)(a).
511 U.S. at 719.
The harm associated with FERC's desire to be "more stringent" regarding
aesthetics is that this adjustment degrades other beneficial uses. Washington
State's antidegradation policy, WAC 173-201A-070, requires Ecology to protect
and maintain all existing beneficial uses. According to its terms, the policy is
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to be guided by Chapter 90.54 RCW, which explicitly defines hydroelectric
power generation, fish and wildlife maintenance and enhancement, and
recreational and aesthetic values as beneficial uses. RCW 90.54.020(1).
Ecology was required to protect all existing beneficial uses--including
hydropower use---when it issued its WQC. Ecology acknowledged the need to
protect the existing beneficial use of PSE's water right claim for
nonconsumptive diversion of 2,500 cfs for the generation of power early on in
the relicensing WQC process and confirmed this with FERC. AR 984,
ER 1473. Ecology fulfilled its balancing requirement in the WQC, balancing
aesthetics uses along with others, including aquatics and hydropower. AR 18,
ER 443; AR 25, ER 449; AR 272, ER 947-79; AR 855, ER 1403-412.
However, by requiring more water over the Falls for aesthetics, the
License Order correspondingly decreases the amount diverted to the existing
beneficial hydropower use. See AR 1074, ER 1827-834, 1912-14. This is in
direct contravention of WAC 173-201A-070(1 ), which provides in relevant
part: "Existing beneficial uses shall be maintained and protected and no further
degradation which would interfere with or become injurious to existing
beneficial uses shall be allowed."
FERC's "adjustment" is potentially in degradation of other beneficial
uses. Because increases in aesthetic flows during daylight hours result in river
level fluctuations, this may adversely impact downstream fish and wildlife
resources. Ecology consulted with WDFW regarding such impacts and
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minimized fluctuation events when it issued its WQC. See AR 1074, ER 1801-
804; AR 1245, ER 2121-2132. In sharp contrast, FERC modified these flows
without such consultation and without addressing these potential effects.
2. FERC's Revision to the WQC Flows Is Not Based onSubstantial Evidence
In the dissenting opinion of the First Rehearing Order, Commissioner
Kelliher briefly recounts the requirements of the License Order and then states,
"I see nothing here that warrants rebalancing these interests as considered by
the Commission in its June 29, 2004 relicensing order." AR 1337, ER 2243-44.
Even ifFERC had authority to revise WQC flows, FERC's Rehearing Orders do
not rest on substantial evidence demonstrating that the revised flows are more
protective.
a. The Record Establishes that the Revised Flows Are
Not More Protective of All Beneficial Uses or
Water Quality Standards
The record establishes that FERC's revised flow regime is not more
protective of all beneficial uses. First, increasing flows over the Falls
negatively affects hydropower use. AR t 074, ER 1912-14. Expressed in terms
of the monetary values of lost power, the revised aesthetic flow established by
FERC comes at a cost of approximately $18.3 million ($458,000 per year for 40
years). AR 1337, ER 2238. These dollars do not capture the harm to the public
interest in diminishing a renewable energy supply. AR 1094, ER 1897-1901.
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FERC's Rehearing Orders refer to no evidence that would support further
degradation of this beneficial use.
Second, the aesthetic flow is likely to increase Total Dissolved Gas
("TDG") levels in the pool at the base of the Falls, which may degrade water
quality. In the relicensing process, TDG was identified as a parameter of
concern in the plunge pool. The highest TDG measurement was within 6% of
the state limit. See AR 1345, ER 2259. Ecology's WQC requires long-term
monitoring of TDG levels. AR 1245, ER 2129. By making a change that could
degrade water quality with respect to TDG, FERC upset the WQC balance.
Third, the flow levels FERC established in the First Rehearing Order
exceed the WQC requirements by 550 cfs to 975 cfs, which will result in a
greater range of flows and greater river level fluctuation events to implement
the various flows. In the WQC, river level fluctuation was limited in scope and
duration to minimize potential effects on aquatic species downstream. See
AR 1279, ER 2137-139. There is no evidence in the record indicating that
FERC considered this potential impact.
b. Substantial Evidence Does Not Establish that More
Flows Equate to Additional Religious ExerciseValue
The License Order requires higher flows, with seasonal variations, that
equate to significantly more water over the Falls in volumes and at times that
more closely conform to natural conditions. These flows were incorporated in
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the WQC and extensively analyzed in the relicensing proceeding, and the
benefits attributable thereto were supported by substantial evidence.
No such analysis or evidence supports FERC's decision to adjust these
flows on rehearing. No evidence supports FERC's conclusion that this
adjustment materially enhances the value of flows from a religious or from a
broader aesthetic perspective.
From a religious perspective, FERC points to no evidence that the
incremental increase in flows (i.e., beyond the flow enhancements contained in
the License Order) are correlated to any specific religious tradition or practice.
Rather FERC appears to offer up "more" water, but does so without any
supporting evidence estabhshing that "more" is better than what FERC initially
determined to be sufficient for these purposes.
If one takes a broader perspective on aesthetics, there is still no evidence
to support the conclusion that FERC's "adjustment" provides a material benefit.
As noted above, the aesthetic benefits of many different flow proposals were
considered in connection with developing the flows that were included in the
WQC and the initial License Order. The record contains still photos and
videotapes taken of specific flow variations. AR 3, ER 439-42; AR 1074, ER
1675-2078. However, there are no still photos 3° in the FEIS depicting the
30 The Application contained one still photograph depicting a flow in an
estimated range between 651-1,600 cfs. AR 1, ER 66n. The photograph is
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revised FERC flows, and there is only a 3-5 second visual of flows around
1,200 cfs on the videotapes. Id. Hence, these documents provide no basis to
substantiate 1,000 cfs as a level of water flow equating to a specific aesthetic
benefit.
However, the record does demonstrate that providing 200 or 450 cfs over
the Falls could generate as much mist as 1,000 cfs over the Falls on any given
day, depending on the weather. AR 1074, ER 1827-34. The only conclusion
supported by the record is that the incremental flow increases made by FERC in
its Reheating Orders amount to no material aesthetic benefit, with a
corresponding and substantial loss of a renewable resource.
Without a reasoned explanation, and with no evidence supporting FERC's
alleged benefits, FERC's Rehearing Orders fail to meet the APA standard that
"the grounds upon which the agency acted must be clearly disclosed in, and
sustained by, the record."
1575 (10th Cir. 1994).
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,
VIII. CONCLUSION
For the foregoing reasons, PSE respectfully requests that this Court
(a) affirm the License Order with respect to its decision regarding cultural and
historic resource issues, which is consistent with applicable law and supported
by substantial evidence, and (b) reverse FERC's Rehearing Orders with respect
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undated and the relative humidity or other climate conditions at the time of the
photo are not known. Id.
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to the inappropriate adjustment of the Project's flow regime in conflict with the
requirements of the State'jWQC.
DATED: July/___,-_'O06._'_'_
PERKINS COlE LLP
Mark W. Schneider
Markham A. QuehrnKristine R. Wilson
Attorneys for Petitioner/Intervenor
Puget Sound Energy, Inc.
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STATEMENT OF RELATED CASES PURSUANT TO
CIRCUIT RULE 28-2.6
Puget Sound Energy, Inc. is aware of the following related cases pending in
this Court: Snoqualmie bldian Tribe v. Federal Energy Regulatory Commission,
Case No. 05-72739 (consolidated with this case).
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I
certify that Puget Sound Energy, Inc.'s Combined Opening and Intervenor Brief is
proportionately spaced, has a typeface of 14 points or more and contains 13,862
words.
j_i_ [7, 2oOUDate .0 Kristine R. Wilson
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CERTIFICATE OF SERVICE
I certify under penalty of perjury that on July 17_____, 2006, I served by
United States mail, postage prepaid, two (2) true and correct copies of Puget
Sound Energy, Inc.'s Combined Opening and Intervenor Brief to the following
counsel of record:
Andrea Rodgers
Snoqualmie Indian Tribe8130 Railroad Avenue
P.O. Box 969
Snoqualmie, WA 98065
Charles M. Tebbutt
Western Environmental Law Center
1216 Lincoln Street
Eugene, OR 97401
Joan M. Marchioro
Washington Attorney General
Ecology DivisionP.O. Box 40117
Olympia, WA 98504-0117
Michael Kaufmann
Federal Energy Regulatory Commission
M/S: GC-12, Location : 9A-07
888 First St., NE
Washington, D.C. 20426
Kristine R. Wilson
Attorney at Law
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BRIEF ADDENDUM
I
IRelevant Portions of Statutes, Regulations and Rules Cited
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Mark W. Schneider
Markham A. Quehrn
Kristine R. Wilson
PERKINS COIE LLP
10885 NE 4th Street, Suite 700
Bellevue, WA 98004-5579
(425) 635-1400
Attorneys for Petitioner Puget Sound Energy, Inc.
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Water Resources Act of 1971 90.54.010
alty under RCW 90.48.144 or 70.94.431 as now or are here-after amended. No person may discharge wastes mto thewaters or air of the state who fails to satisfy the requirementsof RCW 90.52.010 and 90.52.040 [1971 ex s. c 160 § 3.]
90.52.040 Wastes to be provided with available meth-ods of treatment prior to discharge into waters of thestate, Except as provided in RCW 90.54.020(3)(b), in theadmimstradon of the provisions of chapter 90.48 RCW, thedirector of the department of ecology shall, regardless of thequality of the water of the state to which wastes are dis-charged or proposed for discharge, and regardless of the rmn-imum water quality standards established by the director forsaid waters, require wastes to be provided with all known,available, and reasonable methods of treatment prior to theirdischarge or entry into waters of the state. [1987 c 399 § 1,1971 ex.s. c 160 § 4.]
90.52.900 Short title. This act shall be known and maybe cited as the Pollution Disclosure Act of 1971. [1971 ex.sc 160 § 5.1
Chapter 90.54 RCW
WATER RESOURCES ACT OF 1971
S4_tlons
90.54 005 Fin!hogs---ObJeCtives--2002 e 3299054010 Purpose90 54.020 General declaration of fundamentals for utHtzaUon and man-
agerneat of waters of the state90 54 030 Water and related resources--Department to be advised--
Water resources data program90 54.035 State fan&ng of water resource programs--Pnontms.90 54.040 Comprehensive state water resottrees program--Modifying
extsnng and adopung new regulations and statutes90 54.045 Water resource planmog--Pdot process--Report to the legls-
lataxre.
90 54 050 Setting as!de or wqthdrav, mg waters--Rules---Consultationwith leglslauve commttte.es--Pubhc heanng, no!tee--Review
90 54 060 Department to seek involvement of other persons and nnutms,me_as--Asststance grants
90.54 080 State to v_gorously represent its raterc.sts before federal agou-ci¢_. interstate agcoct_.
90.54 090 State, local go_enamants, mumctpal corporations to COmplywah chapter
90.54,100 Department to evaluate needs for projects and altemauvemethods of financing
90.54. 110 Authority to Secure and obtain benefits, including grants90 54 120 "Department." "uulize," and "ut_ltaauon" defined
90.54.130 Land use management pohcy rand! ficattons--Advlso_ ree-ommendauons.
90 54.140 Protect!on of ground wamr aquifers ff sole drinking watersource
90.54 150 Water supply projects---Cooperation with other agencies--Scope of paractpatlon
90.54.160 Department to report on dam safety
90 54 170 Elecme generanon faethty--Evaluatlon of appheauon toappropriate water
90.54,t80 Water use efficiency and conservation program,s and practices90.54 191 Stream flow restoration a pnonty90 54 800 Policy gtudeltnes90_54 900 Cerr_n ngh_, authonty, not to be affected by chapter99.54.910 Short utle
90 54 920 Rights not impau'ed
Environmental eertlficatlon programs--Fees--Rules--Ltabdtt_ RCW4321A 175
90.54.005 Findings---Objectives---2002 c 329. The
legislature recognizes the critical importance of providingand securing sufficient water to meet the needs of people,
(2004 Ea.)
farms, and fish The legislature finds that an effective way tomeet the water needs of people, farms, and fish is throughstrategies developed and implemented at the local watershedlevel. The objectives of these strategies are to supply water msuffictent quantities to satisfy the following three waterresource objectives
(1) Providing sufficient water for residential, commer-cial, and mdusmal needs;
(2) Providing sufficient water for productive fish popula-uons; and
(3) Providing sufficient water for productive agncultureThe legislature affirms its intent to provide continued
support fdr watershed strategies and provides the tools inchapter 329, Laws of 2002 to assist local watersheds m meet-ing these objectives [2002 c 329 § 1.]
90.54.010 Purpose. (l) The leglslature finds that.(a) Proper utilization of the water resources of this state
is necessary to the promotion of public health and the eco-nomic well-being of the state and the preservation of its nat-ural resources and aesthetic values. Although water is arenewable resource, its supply and availability are becomingincreasingly limited, particularly during summer and fallmonths and dry years when demand is greatest. Growth and
prospenty have significantly mcreased the competition forthis limited resource. Adequate water supplies are essential tomeet the needs of the state's growing population and econ-omy. At the same time instream resources and values must bepreserved and protected so that future generations can con-tmue to enjoy them.
(b) All citizens of Washington share an Interest in theproper stewardship of our mvaluable water resources. Toensure that available water supplies are managed to best meetboth ins!ream and offstream needs, a comprehensive plan-ning process _s essential. The people of the state have theun!que opportunity to work together to plan and manage ourwater. Through a comprehensive planning process thatincludes the state, Indian tribes, local governments, and inter-ested partms, tt Is possible to make better use of availablewater supplies and achieve better management of waterresources Through comprehensive planning, confl!ctsamong water users and interests can be reduced or resolved.
It is tn the best interests of the state that comprehensive waterresource planning be given a high priority so that waterresources and associated values can be utilized and enjoyedtoday and protected for tomorrow.
(c) Diverse hydrologic, climatic, cultural, and socioeco-nomic conditions exist throughout the regions of the state.Water resource issues vary significantly across regions.Comprehensive water resource planning is best accom-phshed through a regional planmng process sensitive to theunique charactensncs and issues of each region.
(d) Comprehensive water resource planning must pro-vide interested parties adequate opportunity to participateWater resource issues are best addressed through cooperationand coordination among the state, Indian tubes, local govern-ments, and interested parties.
(e) The long-term needs of the state require ongoingassessment of water availability, use, and demand A thor-ough inventory of available resources is essential to waterresource management. Current state water resource data and
[Ttfle 90 RCW--page 851
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90.54.020 Title 90 RCW: Water Rights---Environment
data management ts inadequate to meet changing needs andrespond to competing water demands. Therefore, a statewater resource data program ts needed to support an effectivewater resource management program. Efforts should be madeto coordinate and consolidate into one resource data systemall relevant reformation developed by the department of ecol-
ogy and other agencies relating to the use, protection, andmanagement of the state's water resources.
(2) It is the purpose of this chapter to set forth fundamen-tals of water resource policy for the state to insure that watersof the state are protected and fully utilized for the greatestbenefit to the people of the state of Washington and, in rela-tion thereto, to provide direction to the department of ecol-ogy, other state agencies and officials, and local governmentin carrying out water and related resources programs. It is theintent of the legislature to work closely with the executivebranch, Indian tribes, local government, and interested par-ties to ensure that water resources of the state are wisely man-aged [1990 c 295 § 1; 1971 ex.s. c 225 § 1 ]
90.54.020 General declaration of fundamentals for
utilization and management of waters of the state. Utdi-zation and management of the waters of the state shall beguided by the following general declarauon of fundamentals.
(1) Uses of water for domestic, stock watering, indus-trial, commercial, agricultural, irrigation, hydroelectricpower production, mining, fish and wildlife maintenance andenhancement, recreational, and thermal power productionpurposes, and preservauon of environmental and aestheticvalues, and all other uses compatible with the enjoyment ofthe public waters of the state, are declared to be benefictal
(2) Allocauon of waters among potential uses and users
shall be based generally on the securing of the maximum netbenefits for the people of the state. Maxtmum net benefitsshall constitute total benefits less costs including opportun,-ttes lost.
(3) The quality of the natural envtrunment shall be pro-tected and, where possible, enhanced as follows.
(a) Perennial rivers and streams of the state shall beretained with base flows necessary to provide for preserva-tion of wildlife, fish, scenic, aesthetic and other environmen-
tal values, and navigational values Lakes and ponds shall beretained substantially in then" natural condition. Withdrawalsof water which would conflict therewith shall be authorized
only in those situations where it is clear that overriding con-stderatioas of the public interest will be served.
(b) Waters of the state shall be of high quality. Regard-less of the quality of the waters of the state, all wastes andother materials and substances proposed for entry into saidwaters shall be provided with all known, available, and rea-sonable methods of treatment prior to entry. Notwithstandingthat standards of quality established for the waters of the statewould not be violated, wastes and other materials and sub-stances shall not be allowed to enter such waters which will
reduce the existing quality thereof, except tn those situationswhere it is clear that overriding considerations of the publicinterest will be served. Technology-based effluent limitationsor standards for discharges for mumctpal water treatmentplants located on the Chehalis, Columbia, Cowhtz, Lewis, orSkagu river shall be adjusted to reflect credit for substancesremoved from the plant intake water tf"
[Title 90 RCW---page 86]
(t) The municipality demonstrates that the intake water ts
drawn from the same body of water into wluch the dischargets made; and
(it) The municipality demonstrates that no violation ofreceiving water quality standards or appreciable environmen.tal degradation will result.
(4) The development of multipurpose water storagefacthties shall be a bagh priority for programs of water alloca-uon, planning, management, and efficiency The department,other state agencies, local governments, and planning umtsformed under *section 107 or 108 of this act shall evaluate
the potentt.al for the development of new storage projects andthe benefits and effects of storage m reducing damage tostream banks and property, increasing the use of land, provid-ing water for municipal, industrial, avtcultural, power gener-ation, and other beneficial uses, and improving stream flow
regtmes for fisheries and other mstream uses
(5) Adequate and safe supplies of water shall be pre-served and protected in potable condition to satisfy humandomestic needs.
(6) Multiple-purpose impoundment structures are to bepreferred over single-purpose structures. Due regard shall begiven to means and methods for protection of fisheryresources tn the planning for and construction of waterimpoundment structures and other artificial obstructions.
(7) Federal, state, and local governments, individuals,corporations, groups and other entities shall be encouraged tocarry out practices of conservation as they relate to the use ofthe waters of the state In addition to tradtttonal developmentapproaches, improved water use efficiency and conservationshall be emphasized m the management of the state's waterresources and in some cases will be a potential new source ofwater with which to meet future needs throughout the state
(8) Development of water supply systems, whether pub-licly or privately owned, which provide water to the publicgenerally in regional areas within the state shall be encour-aged Development of water supply systems for multipledomestic use which will not serve the public generally shallbe discouraged where water supplies are available from water
systems serving the public
(9) Full recognition shall be given in the administrationof water allocauon and use programs to the natural interrela-
tionships of surface and ground waters.
(10) Expressions of the public interest will be sought at
all stages of water planning and allocation discussions
(l l) Water management programs, including but not
limited to, water quality, flood control, drainage, erosion con-trol and storm runoff are deemed to be m the public interest.[ 1997 c 442 § 201, 1989 c 348 § 1, 1987 c 399 § 2; 1971 ex s.c 225 § 2 1
*Reviser's note: Sections 107 and t08 of this act were vetoed by the
governor
Part headings not law--Severability--1997 e 442: See RCW90 82 900 and 90 82 901
Scverability--1989 c 348: "If any provision of this act or i_ apphca-
tton to any person or circumstance ts held mvahd, the remainder of the act or
the apphcatton of the provision to other persons or circumstances is notaffected " [1989 e 348 § 13 ]
Rights not impaired--1989 c 348: See RCW 90 54.920
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Water Resources Act of 1971 90.54.045
90.54.030 Water and related resourcesmDepart-ment to be advised--Water resources data program. Forthe purpose of ensuring that the department is fully advised inrelation to the performance of the water resources programprovided in RCW 90.54.040, the department is directed tobecome informed with regard to all phases of water andrelated resources of the state. To accomphsh this objectivethe department shall.
(1) Develop a comprehensive water resource data pro-gram that provides the information necessary for effectiveplanmng and management on a regional and statewlde basis.The data program shall include an reformation managementplan describing the data requirements for effective water
resource planning, and a system for collecting and providingaccess to water resource data on a regional and statewtdebasis,
(2) Collect, organize and catalog existing informationand studies available to tt from all sources, both public andprivate, pertaining to water and related resources of the state,
(3) Develop such additional data and studies pertainingto water and related resources as are necessary to aecomphshthe objectives of thls chapter, and
(4) Develop alternate courses of action to solve existingand foreseeable problems of water and related resources andinclude therein, to the extent feasible, the economic and
social consequences of each such course, and the impact onthe natural environment.
All the foregoing shall be included tn a "water resources
information system" established and maintained by thedepartment. The department shall develop a system of cata-loging, storing and retrieving the information and studies of
• the information system so that they may be made readilyavailable to aaad effeclavely used not only by the departmentbut by the pubhc generally. [1997 c 32 § 1; 1990 c 295 § 2,1988 c 47 § 4; 1971 ex.s. c 225 § 3 ]
Application--Severability--1988 e 47: See notes following RCW43.83B 300
90.54.035 State funding of _ater resource pro-grew-s--Priorities. (1) State funding of water resource, sup-ply, and quality related capital programs, both current andfuture, shall, to the maximum extent possible within state orfederal legal requirements, be directed to assist in the resolu-
tion of current conflicts and tmplementation of regional waterresource plans with priority given to current needs over newrequirements.
(2) Consistent with RCW 90.54.180, priority shall begiven, to the maximum extent possible within state or federallegal requirements, to those water conservation projectsfunded by the state that will result in the greatest net watersavings. [1991 c 347 § 3.]
Purposcs--1991 e 347: 5¢_notefollowing RCW90.42.005Sevet_bilityn1991 c 347: See RCW90 42.900
90.54.040 Comprehensive state water resources pro-gram--Modifying existing and adopting new regulationsand statutes. (1) The department, through the adoption ofappropriate rules, is directed, as a matter of high priority toinsure that the waters of the state are utilized for the best
interests of the people, to develop and implement in accor-dance with the policies of this chapter a comprehensive state
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water resources program which will provide a process formaking decisions on future water resource allocation and use.The department may develop the program in segments so thattmmediate attention may be given to waters of a given phys-ioeconomic region of the state or to specific critical problemsof water allocation and use
(2) In relation to the management and regulatory pro-grams relating to water resources vested in it, the departmentis further directed to modify existing regulations and adoptnew regulations, when needed and possible, to insure thatexistmg regulatory programs are in accord with the water
resource policy of this chapter and the program established msubsection (1) of this section.
(3) The department is directed to review all statutes relat-
ing to water resources which it is responsible for implement-rag. When any of the same appear to the department to beambiguous, unclear, unworkable, unnecessary, or otherwisedeficient, tt shall make recommendations to the legislaturemchidmg appropriate proposals for statutory modificationsor additions Whenever it appears that the policies of anysuch statutes are m conflict with the pollcles of this chapter,and the department is unable to fully perform as provided msubsection (2) of this section, the department is directed tosubmit statutory modifications to the legislature which, ifenacted, would allow the department to carry out such stat-utes m harmony with this chapter [1997 c 32 § 2; 1988 c 47§ 5, 1971 ex.s c 225 § 4.]
Applieatlon----Severabihty--1988 c 47: See notes following RCW43.83B 300.
90.54.045 Water resource planning--Pilot process----Report to the legislature. (1) In the development and imple-mentation of the comprehensive state water resources pro-gram required in RCW 90.54.040(1), the process describedtherein shall involve participation of appropriate state agen-cies, Indian tribes, local governments, and mterested parties,and shall be applied on a regional basts pursuant to subsec-non (2) of this section.
(2) Prior to July t, 1991, the department, with advicefrom appropriate state agencies, Indian mbes, local govern-ment, and interested parties, shall identify regions and estab-hsh regional boundaries for water resource planning and shalldesignate two regions in which the process shall be imitatedon a pilot basts. One region shall encompass an area withinthe Puget Sound basin in which critical water resource Issuesexist. A concurrent pilot process may encompass a regtoneast of the Cascade mountains.
(3) The department shall report to the chairs of theappropriate legislative committees prior to July 1st each yearsummarizing the progress of the pilot process in the tworegions. The pilot process in each region shall be completedand shall produce a regional water plan by December 31,1993.
(4) Appropriate state agencies, Indian tribes, local gov-ernments, and interested parties in regions not selected for thepilot program are strongly encouraged to commence waterresource planning within their regions. [1991 c 347 § 4; 1990c 295 § 3 1
EffeeOvedate---1991 c 347§ 4. "Seeuon 4 of this act t$necessaryforthe _mmedzatepreservationof the pubhepeace, health,or safety,or support
[Title 90 RCW---page871
I 90.54.050 Title 90 RCW: Water Rights---Environment
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of the state government and US ¢xlsung pubhc mstttuUons, and shall take
effect July 1, L991 " [1991 c 347 § 28 ]
Pu_t991 c 347: See note folIowhag RCW 90 42 005
Scverabdity--t991 c 347: See RCW 90 42 900
90.54.050 Setting aside or withdrawing waters mRules--Consultation with legislative committees--Public
hearing, notice---Review. In conjunction with the programsprovided for m RCW 90.54 040(1), whenever it appears nec-essary to the &rector m carrymg out the pohcy of thts chap-ter, the departmem may by rule adopted pursuant to chapter34.05 RCW.
(1) Reserve and set asxde waters for beneficial utihzat,onin the future, and
(2) When sufficmnt information and data are lacking toallow for the making of sound decisions, withdraw vanouswaters of the state from additional appropnations until suchdata and mformation are avadable. Before proposing theadoption of rules to withdraw waters of the state from addi-tional appropriation, the department shall consult with thestanding comrmttees of the house of representatives and thesenate having jurisdiction over water resource managementissues.
Prior to the adoption of a rule under this section, thedepartment shall conduct a pubhc hearing m each county inwhich waters relating to the rule are located. The public hear-ing shall be preceded by a notice placed m a newspaper ofgeneral circulation published within each of said countiesRules adopted hereunder shall be subject to review m accor-dance with the provisions of RCW 34 05.240. [1997 c 439 §2; 1997 c 32 § 3; 1988 c 47 § 7; 1971 ex.s. c 225 § 5.]
Reviser's note: This sect,on w_ amended by 1997 e 32 § 3 and by1997 c 439 § 2. each wUhout reference to the other Both amendments are
tocorporated m the pubheation of this section under RCW 1.12.025(2) Forrule of construcnon, see RCW 1 12 025(I)
WAC 173-563-015---Vahdlq:---1997 c 439: "WAC t73-563-015 as tt
existed prior to July 27, 1997. ts void " ll997 c 439 § l.l
Applieation----Se-,erability--1988 c 47: See notes following RCW43 83B 300
90.54.060 Department to seek involvement of otherpersons and entities, means----Assistance grants. To insurethat all of the various persons and entities having an interestin the water resources of the state and the programs of thechapter are provided with a full opportunity for involvementnot only with the development of the program but the imple-mentaUon by the department under this chapter, the followingdirections are given
(1) The department shall make reasonable efforts toinform the people of the state about the state's water andrelated resources and their management. The department in
the performance of the responsthihties provided m this chap-ter shall not only invite but actively encourage participation
by all persons and private groups and enUties showing aninterest in water resources programs of this chapter.
(2) The department shall similarly invite and encourageparticipation by all agencies of federal, state and local gov-ernmenL including counties, municipal and pubhc corpora-tions, having interests or responsibdtdes relating to waterresources. Said state and local agencies are directed to fully
partacipate to insure that their interests are considered by thedepartment. The department shall, when funds are made
[Title 90 ROW---page 881
available to it for such purposes, provide assistance grants tosaid state and local agencies for the purposes of financingacuvtties directed to be performed by them under this subsec-tion. [1971 ex.s. c225 §6.]
90.54.080 State to vigorously represent its interestsbefore federal agencies, interstate agencies. The state shallvigorously represent its interest before water resource regula-tion, management, development, and use agencies of theUnited States, including among others the federal powercommission, environmental protection agency, army corps ofengmeer_, department of the interior, department of agncul-ture and th6 atomic energy commission, and of interstate
agencies with regard to planning, licensing, rehcensiag, per-mit proposals, and proposed construction, development andutilization plans Where federal or interstate agency plans,actwmes, or procedures conflict with state water policies, allreasonable steps avmlable shall be taken by the state to pre-serve the integnty of this state's policies. [1971 ex.s. c 225 §81
90.54.090 State, local governments, municipal corpo-rations to comply with chapter. All agencies of state andlocal government, including counties and municipal and pub-lic corporattons, shall, whenever possible, carry out powersvested in them in manners which are consistent with the pro-visions of this chapter. [1987 c 505 § 82, 1977 c 75 § 95,1971 ex s. c 225 § 10.]
90.54.100 Department to evaluate needs for projectsand alternative methods of financing. The department ofecology shall as a matter of high prionty evaluate the needsfor water resource development projects and the alternativemethods of financing of the same by public and private agen-cies, including financing by federal, state and local govern-ments and combinations thereof Such evaluauons shall be
broadly based and be included as a part of the comprehensivestate water resources program relating to uses and manage-ment as defined in RCW 90.54 030. [1997 c 32 § 5, 1971ex.s c 225 § 1 I.]
90.54.110 Authority to secure and obtain benefits,including grants. The department of ecology is authorizedto obtain the benefits including acceptance of grants, of anyprogram of the federal government or any other source tocarry out the provisions of this chapter and ts empowered totake such actions as are necessary and appropriate to securesuch benefits. [1971 ex.s. c 225 § 12.]
90.54.120 "Department," "utilize," and "utiliza-tion" defined. For the purposes of thxs chapter, unless thecontext is clearly to the contrary, the following definiuonsshall be used.
(1) "Department" means department of ecology.(2) "Utilize" or "utihzatton" shall not only mean use of
water for such long recognized consumptave or nonconsump-tire beneficial purposes as domestm, stock watenng, indus-trial, commercial, agricultural, irrigation, hydroelectricpower production, thermal power producuon, rmmng, recre-ational, maintenance of wildlife and fishlife purposes, but
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Water Resources Act of 1971 90.54.180
includes the retention of water in lakes and streams for the
protection of environmental, scenic, aesthetic and relatedpurposes, upon which economic values have not been placedhistoncally and are difficult to quantify. [1971 ex s. c 225 §13.]
90.54.130 Land use management policy modifica-tions--Advisory recommendations. The department ofecology may recommend land use management policy modi-fications it finds appropriate for the further protectron ofground and surface water resources in this state. Such advi-sory recommendations may be made to other state regulatoryagencies, local governments, water systems, and other appro-priate bodies. [1984 c 253 § 4.1
90.54.140 Protection of ground water aquifers if soledrinking water source. The legislature hereby declares thatthe protection of ground water aquifers wMch are the soledrmking water source for a given jurisdiction shall be of theuppermost priority of the state department of ecology, depart-ment of social and health services, and all local governmentagencies with jurisdiction over such areas. In administrationof programs related to the disposal of wastes and other prac-rices which may impact such water quality, the department ofecology, department of social and health services, and suchaffected local agencies shall explore all possible measures forthe protection of the aquifer, mcluding any appropriate incen-tives, penalties, or other measures designed to bring aboutpracttees which provide for the least impact on the quality oftheground water [1984c 253 § 5.]
90.54.150 Water supply projects---Cooperation withother agencies---Scope ofparticipation. When feasible, thedepartment of ecology shall cooperate with the United Statesand other public entities, including Indian tribes, in the plan-ning, development, and operation of comprehensive watersupply projects designed primarily to resolve controversies
and conflicts over water use by increasing water quantity andimproving water quality within a stream or river system, orother bodies of water, as well as to enhance opportumties forboth instream and diversionary water uses within the system,and, in relation thereto, the department may:
(1) Paructpate with the federal government and otherpublic entities in the planning, development, operation, andmanagement of various phases of water projects hereafterauthorized by congress;
(2) Provide rights to the use of public waters under thestate's surface and ground water codes for these projectswhen the waters are available for allocation, and
(3) Provide financial assistance through grants and loansfor projects when moneys are made available to the depart-ment for this assistance by other provisions of this code[1979 ex.s. c 216 § 9 ]
Effective date---Scverablfity--1979 ex_ c 216. Sol: notes follo_ngRCW 90 03.245
90..54.160 Department to report on dam safety. Thedepartment of ecology shall report to the legislature on thelast working day of December of 1984, 1985, and 1986, andthereafter as deemed appropriate by the department, on dam
(2004 Ed.)
facihties that exhibit safety deficiencies sufficient to pose asigmficant threat to the safety of life and property. The reportshall identify the owner or owners of such facditaes, detail the
owner's ability and attitude towards correcting such deficien-cies, and provide an estimate of the cost of correcting thedeficiencies ifa study has been completed. [1984 c 83 § 1.]
90.54.170 Electric generation facility--Evaluation ofapplication to appropriate water. In addition to otherrequirements of this chapter, when the proposed waterresource development project involves a new water supplycombined with an electric generation facdity where suchelectricity generated may be sold to an entity authorized bylaw to &stribute electricity, the department shall evaluate andutilize, in connection with any application to appropriatewater pursuant to the water code, chapter 90 03 RCW, suffi-cient information furnished by the project applicant regardingthe need for the project, alternative means of serving the pur-poses of the project, the cumulative effects of the project andsimilar projects that are burr, under construction or permittedin the relevant river basin or basins, the impact, if any, onflood control plans and an estimate of the impact, if any, ofthe sale of the project's electricity on the rates of utility cus-tomers of the Bonneville power adnunistration. Such infor-mation shall be furnished at the project appheant's own costand expense [1985 c 444 § 6.]
Intent---Construct_on---Severabihty--1985 c 444: See notes follow-mg RCW 35 92 010
90.54.180 Water use efficiency and conservation pro-grams and practices. Consistent with the fundamentals ofwater resource pohcy set forth m this chapter, state and localgovernments, individuals, corporations, groups and otherentrees shall be encouraged to carry out water use efficiencyand conservation programs and practices consistent with thefollowing.
(1) Water efficiency and conservation programs shouldutthze an appropriate mix of econormc incentives, cost shareprograms, regulatory programs, and technical and publicinformation efforts. Programs which encourage voluntarypartmlpation are preferred.
(2) Increased water use efficiency should receive constd-eratmn as a potential source of water in state and local waterresource planning processes In determining the cost-effec-tiveness of alternative water sources, consideratmn should be
given to the benefits of conservation, waste water recycling,and impoundment of waters
(3) In determming the cost-effectiveness of alternative
water soumes, full consideratmn should be given to the bene-fits of storage which can reduce the damage to stream banksand property, increase the utilization of land, provide waterfor municipal, industrial, agricultural, and other beneficialuses, provide for the generation of electric power fromrenewable resources, and improve stream flow regimes forfishery and other instream uses
(4) Entities receiving state financial assistance for con-
struction of water source expansion or acquisition of newsources shall develop, and implement if cost-effective, awater use efficiency and conservataon element of a water sup-ply plan pursuant to RCW 43.20.230(1)
[Title 90 ROW---page 89]
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90.54.191 Title 90 RCW: Water Rights--Environment
(5) State programs to improve water use efficiencyshould focus on those areas of the state in which water is
overappropriated; areas that experience diminished stream-flows or aquifer levels; and areas where projected waterneeds, including those for iustream flows, exceed avmlablesupphes.
(6) Existing and future generations of citizens of the stateof Washington should be made aware of the importance ofthe state's water resources and the need for wise and efficient
use and development of this vital resource In order toincrease t/us awareness, state agencies should integrate pub-he education on increasing water use efficiency into existingpubhc mformatton efforts This effort shall be coordinated
with other levels of government, including local governmentsand In&an tubes [1989 c 348 § 5.]
Sevarobillty--1989 c 348: See note following RCW 90.54 020
90.54.191 Stream flow restoration a priority. Thedepartment shall priontize the expenditure of funds and otherresources for programs related to stream flow restoration mwatersheds where the exercise of inchoate water rights mayhave a larger effect on stream flows and other water uses[2003 1st sp.s. c 5 § 10.]
Severability---2003 [st sp._ e 5: See note following RCW 90 03.015
90.54.800 Policy guidelines. Future development ofhydropower and protection of over-related resources shall beguided by poheies and programs which.
(1) Create opportunaaes for balanced development ofcost-effective and environmentally sound hydropowerprojects by a range of development interests,
(2) Protect sigmficant values associated with the state's
rivers, including fish and wildlife populations and habitats,water quality and quantity, unique physical and botanical fea-tures, archeologlcal sites, and scemc and recreatronalresources;
(3) Protect the interests of the citizens of the state regard-mg river-related economic development, municipal watersupply, supply of electric energy, flood control, recreationalopportunity, and environmental integrity;
(4) Futly utilize the state's authority in the federal hydro-power hceusmg process. [1989 c 159 § 3.]
Legistatn'e findmgs_1989 e 159: "The legtslaturo finds that the taskforce on hydroelactnc development and resource protection has recom-mended than
(I) The state adopt goals to dsreet future development of hydropowerand proteeuon of nver-relatcd resources,
(2) The state take steps to enhance ate exisung hydropower permitreview process,and
(3) The state develop, m concert wzth appropriate mter_ts, a compre-hansv.e state hydropower plan." [1959e 159 § 1 ]
Hydro task force--1989 c 159: "(I) The Washington state energy
office shall contract with an independent facilitator to reeonvene and conrdi-
rate the task force assembled to implement sentlon 301, chapter 7. Laws of1987 1st ex. sess The task force shall prepare by March 31, 1991. a state
comprehensive hydropowes plan to seaw¢ the broad pobhc interest regardingdevelopment of cost--effectiva elecmcaty arid conservation of r,ver-related
environmental values. Task force meetings shall be open to the public. Thefacthtator shall asstst the task force in appropriate efforts to inform the gen-
eral pubhe regarding project concepts and progress Task force members
shall make appropriate efforts to inform the interest groups they represent.
(2l By December 15. 1989, the task force shall engage in a midpoint
review whereby participants r.an Jomtiy appraise the progress of the proJeCt[f. m the opinion of the parnctpants, a consensus to continue as a task force
["rifle 90 RCW.--page 901
cannot be achieved, the exeeunve agencies shall use their existing statutory
authonty to develop a plan, with the assistance of all affected parties and par.Uetpatmg agencies, budding upon the work that has been done by the taskforce
(3) If the task force ennunues beyond December 15. 1989. u shall byJuly 1. 1990. recommend to the legislature a lead agency for Implementanonand management of the state comprehensive hydropower plan" [ 1989 e 159§21
Plan content--1989 e 159: *(I) At a mmtmura, the plan shall designatetwo categories of resource agreement areas (a) Sensmve areas where hydro-power development is likely to conflict with significant environmental val-
ues. and (b) less sensitive areas where development will not conflict with or
may enhance env_ronmantal values. Some are.as may remain unclassified due
to lack of reformation or tf they fall between the two Categories The planshall integrate resource agreement area finthngs w,th existing state laws and
programs me'lading mstream flow basin plans prepared by the department ofecology, watershed planning coordinated by the department of fisbenes.
watershed planning coordinated through the Puget Sound water quahtyauthority, watershed planning for mumcipal water supply, the sceme nvars
program admimsterad by the parks and recreation commission, and the plan-
nlng process developed through the joint select committee on water
resources policy and any actions resulung from that process(2) At a mlmmum, the final plan report shall
(a) List appheable laws. rules, and policies.(b) Describe the waterways or basins covered by the plan,
(el Designate the categories of resource agreement area for each water-way or basra.
(d} Describe. for each waterway where hydropower ts to be affected.
the slgmfieant resources that cause the waterway or basin to be so desig-nated,
(el Identify goals, objectives, and recommendations for improving.developing, or conserving affected waterways.
(0 Desenbe how the plan zs to be integrated with other planning aettv.
ltles and pohey mmatlvas and how the plan will be implemented andamended.
(g) Assess ate anticipated effect of the plan on hydropower develop.ment and resource protecuon and
(h) Describe ate plan development process " [1989 e 159 § 4 l
90.54.900 Certain rights, authority, not to be affectedby chapter. Nothing in tins chapter shall affect any existingwater rights, riparian, approprtative, or otherwise, nor shall it
affect existing rights relating to the operation of any hydro-electric or water storage reservoir or related faclhty; nor shallit affect any exploratory work, construction or operation of athermal power plant by an electric utility m accordance wlth
the provisions of chapter 80 50 RCW Nothing in this chaptershall enlarge or reduce the department of ecology's authorityto regulate the surface use of waters of this state or structures
on the underlying beds, tidelands or shorelands [1971 ex s.c 225 § 9-1
90.54,910 Short title. Th_s chapter shall be known andmay be cited as the "Water Resources Act of 1971". [1971exs c225§14]
90.54.920 Rights not impaired. (1) Nothing m this actshall affect or operate to impair any existing water nghts
(2) Nothing in this act shall be used to prevent futurestorage options, recognizing that storage may be necessary asa method of conserving water to meet both mstream and out-of-stream needs
(3) Nothing in this act shall mfnnge upon the rate-mak-ing prerogatives of any public water purveyor.
(4) Nothing m this act shall preclude the jomt selectcommittee on water resource policy from reviewing any sub-ject matter contained herein for any future modifications[1989 c 348 § 3.1
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I 90.48.260 Title 90 RCW: Water Rights--Environment
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make agreements and enter mto such contracts as are appro-priate to carry out a program of momtormg the condition ofthe waters of the state and the effluent dtscharged therem,mcluding contracts to momtor effluent discharged into pubhcwaters when such monitoring Is required by the terms of awaste discharge permit or as part of the approval of a sewer-age system, if adequate compensauon is provided to thedepartment as a term of the contract. [ 1987 c 109 § 141, 1967c 13§23]
Purpose---Short title--Construction-- Rules.---Severability--Cap-tions.---1987 C 109: See notes following RCW 43 21B ID01
90.48.260 Federal clean water act--Department des-ignated as state agency, authority--Delegation of author-ity--Powers, duties, and functions. The department ofecology ts hereby designated as the State Water PollutionControl Agency for all purposes of the federal clean water actas it exists on February 4, 1987, and is hereby authorized topa_tcipate fully m the programs of the act as well as to takeall action necessary to secure to the state the benefits and to
meet the requirements of that act. With regard to the nationalestuary program established by section 320 of that act, thedepartment shall exercise its responsibihty jointly with the*Puget Sound water quahty authority. The department ofecology may delegate its authority under this chapter, includ-ing its national pollutant discharge ehmination permit systemauthority and duties regarding animal feeding operations andconcentrated animal feeding opemUons, to the department ofagriculture through a memorandum of understanding Untilany such delegation receives federal approval, the depart-meat of agriculture's adopuon or issuance of animal feedingoperation and concentrated animal fending operation rules,permus, programs, and directives pertaining to water quahtyshall be accomphshed after reaching agreement with thedirector of the department of ecology. Adoption or issuanceand implementation shall be accomplished so that compli-ance with such animal feeding operauon and concentratedanimal feeding operation rules, permits, programs, and direc-tives will achieve compliance with all federal and state waterpollution control laws. The powers granted herein include,among others, and notwithstanding any other provisions ofchapter 90.48 RCW or otherwise, the following.
(1) Complete authority to establish and admtmster acomprehensive state point source waste dtscharge or pollu-tion discharge ehmmation permit program which will enablethe department to quahfy for full participation in any nationalwaste discharge or pollution discharge elimination permitsystem and will allow the department to be the sole agencyissuing permits required by such national system operating inthe state of Washington subject to the provisions of RCW90.48.262(2). Program elements authorized herein mayinclude, but are not hnuted to: (a) Effluent treatment and lim-itation requirements together with timing requirements
related thereto; (b) apphcable receiving water quality stan-dards requirements, (c) requirements of standards of perfor-mance for new sources, (d) pretreatment requirements; (e)termination and modification of permits for cause, (f)requirements for pubhc notices and opportunities for publichearings; (g) appropriate relationships with the secretary ofthe army m the admamstration of his responsibilities whichrelate to anchorage and navigation, with the adrmnistrator of
fl_itle 90 RCW---page 68]
the environmental protection agency in the performance ofhis duties, and with other governmental officials under thefederal clean water act, (h) requirements for inspection, mon-itoring, entry, and reporting, (i) enforcement of the programthrough penalties, emergency powers, and criminal sane-
tlons, (j) a continuing ptannmg process, and (k) user charges.(2) The power to establish and admmister state programs
in a manner which will insure the procurement of moneys,whether in the form of grants, loans, or otherwise; to assist mthe constructmn, operatton, and maintenance of various waterpollution control facdmes and works; and the admimsteringof various state water poUutton control management, regula-tory, and enforcement programs
(3) The power to develop and implement appropriateprograms pertaining to continuing planning processes, area-
wide waste treatment management plans, and basin planning.The governor shall have authority to perform those
actions required of him or her by the federal clean water act.[2003 c 325 § 7, 1988 c 220 § l, 1983 c 270 § 1; 1979 ex s c267 § 1; 1973c 155 § 4, 1967 c 13 § 24.]
*Revlser's note: The Puget Sound water quahty authority and its pew-ers and dunes, pursuant to the Sunset Act chapter 43 131 RCW, were termi-
nated June 30, 1995, and repealed June 30, 1996 See 1990 c 115 §§ 11 and
12. Powers, dunes, and funezaons of the Puget Sound water quahty authoritypertammg to cleanup and protection of Puget Sound )xansferred to the PugetSound acnon team by 1996 c 138 § 11 See RCW 90 71.903.
Intent--Finding--2003 e 325: See note following RCW 90 64 030
Severability--1983 c 270: "If any provmon of this act or its apphca-
ttou to any person or circumstance ts held invahd, the remainder of the act orthe apphcanon of the provision to other persons or c_rcumstances ts not
affected " [1983 c 270 § 5 1
90.48.261 Exercise of powers under RCW90.48.260---Aquatic resource mitigation. When exercisingits powers under RCW 90.48 260, the department shall, at therequest of the project proponent, follow the guidance con-tained m RCW 90.74.005 through 90.74.030. [1997 c 424 §7.]
90.48.262 Implementation of RCW 90.48.260--Per-mrs for energy facilities---Rules and procedures. (1) Thepowers estabhshed under RCW 90.48.260 shall be imple-mented by the department through the adopuon of rules inevery appropriate situation The permit program authorizedunder RCW 90.48.260(1) shall constitute a continuation of
the established permit program of RCW 90 48.160 and otherapphcable sections within chapter 90.48 RCW. The appropri-ate modifications as authonzed m *this 1973 amendatory act
are designed to avoid duplication and other wasteful practicesand to insure that the state permit program contains allrequired elements of and ts compatible with the requirementsof any national permit system.
(2) Permits for energy facilttaes subject to chapter 80.50
RCW shall be issued by the energy facility site evaluationcouncil- PROVIDED, That such permits shall become effec-tive only if the governor approves an application for certifica-tion and executes a certlficaraon agreement pursuant to saidchapter The council shall have all powers necessary to estab-hsh and administer a point source discharge pemut programpertaining to such plants, consistent with applicable receivingwater quality standards estabhshed by the department, and toqualify for full participation in any national waste discharge
(2004Zd)
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Washington State Register, Issue 03-14 WSR 03-14-129
ment program shall be reviewed and approved under the
approval standards of this chapter. All teachers who obtainendorsements after September I, 2003, shall meet therequirements in this chapter. Provided, that colleges and uni-versities may permit an individual enrolled in programs inWashington state ((er. _.r befcre Scp:.em_er I, 2092,)) toobtain endorsements under the requirements m chapter 180-82 WAC, if the individual completes the endorsement pro-gram on, or before August 31, 2005, and the college or uni-versity verifies endorsement program completion on orbefore December 31, 2005. Provided further, that the state
board of education or its designee may waive this require-ment on a case-by-c-ase basis.
(2) Teachers shall be required to obtain a minimum ofone endorsement.
WSR 03-14-129PERMANENT RULES
DEPARTMENT OF ECOLOGY
[Order 02*14----_tled Jtlly 1.2003. 10-15am]
Date of Adoption: June 30, 2003Purpose. This rule making adopts amendments to chap-
ter 173-201A WAC, Water quality standards for surfacewaters of the state of Washington. This adoption will revisethe o-urface water quality standards by:
• Moving from the current class-based system to ause-based system for designaang beneficial uses ofwaters (for example swtmming and aquatic life hab-itaO.
• Making changes to the criteria (for example temper-ature and bacteria) established to protect designateduses
Providing more clarity and detail on implementingthe regulation, including the stem's antidegradatlonpolicy.Organizing the structure and seeuons of the regula-tion to make it easier to use.
Citation of Existing Rules Affected by this Order:Amending chapter 173-201A WAC.
Statutory Authority for Adoption. Chapters 90.48 and90.54 RCW.
Adopted under notice filed as WSR 03-01-124 onDecember 19, 2002, and a supplemental filing on WSR 03-04-082 on February 3, 2003
Changes Other than Edmng from Proposed to AdoptedVersion: Additional details on any changes other than edit-mg from proposed to adopted version of this chapter can befound in the concise explanatory statement that was prepared
to meet the requirements in the APA (RCW 34 05.325)Copies can be obtained by visitant the following website.
http Ilwww ecy wa.gov/programs/wq/swqshndex.html or bycontacting Andrew Kolosseus by phone (360) 407-7543 or
"_ by e-mail ako1461 @ecy wa gov.
•W • Made editorial and clarification correcuons basedon public comment throughout the document.
• Changed char year round protection from 13°C to120C.
2
• Divided the salmon and trout category into "core"(16°C) and "noncore" (17 5°C) to maintain similarsystem as the current standards and to better matchrecent EPA guidance.
• Added narrative language to protect char andsalmon spawning in streams where the single yearround crtterm would be unlikely to protect spawn-ing. This language includes temperature criteria of90C for char and 13°C for salmon spawning.
• To protect all existing nondesignated uses as well asthe downstream designated uses language wasadded that clarifies the criteria for the most
upstream designated uses is to be applied to theheadwaters. Thus the crlteraa for a designated usemay apply above locations where that use does notphysically occur This maintains the system of pro-tection that currently exists in the state standards
• Deleted proposed changes associated with dhssolvedoxygen numeric criteria.
• Deleted proposed numeric criteria associated withthe agricultural water supply use.
• Deleted proposed numenc criteria changes to bacte-ria for fresh water and for most of the state's marinewaters.
• Added language to make it clear that enterococc* asan indicator in marine waters is only apphed m see-ondary contact waters and where shellfish is not aprotected benetictal use.
• Added use descriptions for waterbodies protectedby current bacter,a criteria. In order to keep theexisting Class AA criterm for bacteria and alsomake the conversion to a use based format, we
developed language for a use that provided higherprotecUon than primary contact
• Reorganized the secaon on natural condmons tomake it clear how determinations of natural eondi-
non work with the anadegradauon and incrementalallowance parts of the rule.
• Based on comments on the antidegradation part ofthe rule, added another opuon to protect outstandingresource waters that allows de minimis pollutionfrom well controlled activities.
• Made the table in WAC 173-201A-602 much more
explicit about all the designated uses that mast beprotected.
• Specifically included boating, aesthetics, and fishmlgratton as designated uses as is currendy the casein the existing rule.
Number of Sections Adopted in Order to Comply with
Federal Statute- New 10, Amended 0, Repealed 7; FederalRules or Standards. New 6, Amended 1, Repealed 4; orRecently Enacted State Statutes: New 0, Amended 0,Repealed 0.
Number of Sections Adopted at Request of a Nongov-ernmental Entity. New 12, Amended 3, Repealed 6
Number of Sections Adopted on the Agency's Own Ini-tiative. New 15, Amended 2, Repealed 7.
Number of Sections Adopted m Order to Clarify,Streamline, or Reform Agency Procedures New 15,Amended 8, Repealed 7.
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WSR 03-14-129 Washington State Register, Issue 03-'14
Number of Sections Adopted Using Negouated RuleMalong: New 0, Amended 0, Repealed 0, Pilot Rule Mak-ing. New 0, Amended O, Repealed 0, or Other AlternativeRule Making. New 0, Amended 0, Repealed 0
Other Findings Required by Other Provisions of Law asPrecondluOn to Adoption or Effectiveness of Rule: These
rules will be effecuve under state law thu-ty-one days after fil-ing After adoption, ecology is required to submit the rule tothe United States Environmental Protection Agency (EPA)for approval under the Clean Water Act They have sixtydays to approve or ninety days to disapprove. In order toapprove EPA must send a biological assessment on Washing-ton's rules to the federal fish agencies The federal fish agen-cies will need to concur with EPA on whether or not the rulemeets the Endangered Species Act (ESA) The federal
approval and consultation process couid take up to sixmonths. These adopted rules can not be used for federalClean Water Act actions unul the approval process is com-plete.
Effeetave Date of Rule. Thirty-one days after filingJune 30, 2003
Tom Fltzsimmons
Director
PART I - INTRODUCTION
AMENDATORY SECTION (Amending Order 92-29, filed11/25/92,-effective 12/26/92)
WAC 173-201A-010 ((I._trc._uzt'an.)) _ (1)The purpose of this chapter is to establish water quality stan-dards for surface waters of the state of Washington consistentwith public health and public enjoyment ((ther-eo_,)) of thewater_.___sand the propagation and protection of fish, shellfish,and wildlife, pursuant to the provisions of chapter 90 48RCW ((and :kc Qc!:zdcz and pu._c._ez ",,hcrao0) All actions
must comolv with this chapter As part of this chapter"(a) All surface waters are protected by narrative cn_teria,
designated uses. and an anlldegradatl0n policy
_b, Based on the use designations, numeric and narrative
eriteFia are assigned to a water body to protect the existingand designated uses.
(c) Where multiple criteria for the same water qualityparameter are assigned to a water body to protect different.t_.es, the most string eat criteria for each parameter is to be
(2) Surface waters of the state include lakes, rivers,ponds, streams, inland waters, saltwaters, wetlands, and allOther surface waters and water courses within thejurisd,eti0n.of the state of Washington
(((-2-))) (3) This chapter ((shall)) will be reviewed period-ieally by the department and appropriate revisions ((sha_))will be undertaken.
((ta_.........'I?a,e":.'a:cr "',,:cand q'.:allty c::tzria _c" fc-'_" ia WAC
......... ¢,_. ....... ¢ _r._,:.g:, .... a :..... :n.... :^- c.f the
....... ' ;:'a:c:"q:-zal::y _.3:ea:izl ._a L--: ........ ,c,r,......
..... _ ..................... -;'a:ar ,_.... : .......... the
Pe.r nla o_dll
managemcn: ;_adard:.)) (4) WAC 173-201A-200 through173-20 IA-260 describe the designated water uses and criteriafor the state of Washington These criteria were established
based on existm_ and potential water uses of the surfacewaters of the state. Consideration was also given to both thenatural water nuahtv potential and _ts limitations Comph-ante with the surface water quality standards of the state ofWashington requires compliance with chapter 173-201AWAC, Water quaht¥ standards for surface waters of the _tate
of Washington, chapter 173-204 WAC, Sediment manage-Inent standards, and applicable .federal rules
AMENDATORY SECTION (Amending Order 94-19, filed11/18/97, effective 12/19/97)
WAC 173-201A-020 Definitions. The following defi-nitions are intended to facilitate the use of chapter 173-201AWAC-
"_-DMax" 9r "_-day maximum temperature" iS the,highest water temperature reached on any given day Thismeasure can be obtained using calibrated maximum/mini-
mum thermometers or connnuo.us monltonnE nrobes havingsampling intervals of thirty minutes or less
"7-DADMax" or "7-day average of the daily maxi-
mum temperatures" is the arithmetic average of seven con- Isecutive measures of daily maximum temperatures. The 7-DADMax for any individual day is calculated by averaging.that day's daily maximum temperature with the daily maxi-mum temperatures of the three days prior and the three daysafter that date
"Action value" means a total phosphorus (TP) value
established at the upper limit of the trophic states in eachecoregion Exceedance of an action value indicates that aproblem is suspected A lake-specific study may be neededto confirm if a nutrient problem exits
"Actions" refers broadly to any human proiects or activ-rues
"Acute conditions" are changes m the physical, chemi-cal, or biologic environment which are expected or demon-strated to result in injury or death to an organism as a result ofshort-term exposure to the substance or detrimental environ-mental conchtion.
"AKART" is an acronym for "all known, available, andreasonable methods of prevention, control, and treatment."
AKART shall represent the most current methodology thatcan be reasonably required for preventing, controlling, orabating the pollutants assocmted with a discharge The con-cept of AKART applies to both point and nonpoint sources of
pollution The term "best management practices," typicallyapplied to nonpomt source pollution controls is considered asubset of the AKART requirement. (( .......................
.......... o ........ pract:cz3 to a ' • ......................
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Vol_sg, Nc_ ss
Wednesday. May 4. 1994
Presidential Documents
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Title 3---
The President
Memorandum of April 29, 1994
Government-to-Government Relations WithNative American Tribal Governments
Memorandum for the He_ds of Executive Departments and Agencies
The United Stales Government has a unique legal relationship with NativeAmerican tribal governments as set forth in the Constitution of the UnitedStates, treaties, statutes, and court decisions. As executive departments and'agencies undertake activities.affecting Native American tribal rights or trustresources, such activities should be implemented in a knowledgeable, sen-sitive manner respectful of tribal sovereig;nty. Today, as part of an historicmeeting. I am outlining principles that executive departments and agencies,including every component bureau and omce, are to follow in their inter-actions with Native American tribal governments. The purpose of theseprinciples is to clarify our responsibility to ensure that the Federal Govern-ment operates within a government-to-government relationship with federallyrecognized Native American tribes. I am strongly committed to buildinga more effective day-to-day working ralationship reflecting respect for thefights of self-government due the sovereign tribal governments.
in order to ensure that the fights of sovereign tribal governments are fully
respected, executive branch activities shall ,be guided by the.following:
• {a} The head of each executive department and agency shall be responsible.. for ensuring that the. department or agency operates within a government*
to-gove.rnment relationship with federally recognized tribal governments.
{b}Each executive department and agency shall consult,to the greatest
extentpracticableend tothe extentpermittedby law,with tribalgovermnentspriorto takingactionsthat affectfederallyrecognized tribalgovernments.All such consultationsare to be open and candid so that all interestedpartiesmay evaluateforthemselves the potentialimpact of relevantpropos-als.
(c} Each executive depm'tment and .agency shall assess the impact ofFederalGovernment plans.'projects.programs,and activitieson tnbal trustresourcesand assurethattribalgovernment fightsand concerns are consid-eredduring the development ofsuch plans,projects,programs,and activities.
(d} Each executive depaitment and agency shalltake appropriatestepsto remove any proceduralimpediments to working directlyand effectivelywith tribalgovernments on actwttiesthat affectthe trustproperty and/or governmental fights of the tribes.
(e) Each executive department "and agency shall work cooperatively with
other Federal departments and agencies to enlist thetr interest and supportin cooperative 'efforts,; where appropriate, to accomplish the goals of thismemorandum.
{0 Each executive department and agency shall apply the requirements
of F_,,ecutive Order, Nos. 12875 ("Enhancing the intergovernmental Partner-" ship'] and 12866 ('Regulatory Planning and l_eview"} to 'design solutions
and tailor Federal programs, in appropriate circumstances, to address specificor unique needs of tribal communittes
HelnOnlzne -- 59 Fed. Reg 22951 1994
I
Iz_. Federal Regi_er I Vol. 59. No. 85 / Wednesday. May 4, 1994 / Presidential Documents
The head of each executive depaslment end agency shall ensure that thedepa_qment or agency's bureaus and components are fully aware of this
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Filed S--2-._: 3sr9 pm_
8mi_ 8 ,cede 2n_-4_
memorandum, through publication or other means, and that they are i_compliance with its reqmrements.
This memorandum is intended only to improve the internal managementof the executive bnmch and is not imem:led to. and does not. create anyright to administrative or judicial review, or any other fight or benefitor trust respons_b_ty, substantive or procedural, enforceable by a partyagainst the U_t.ed States. its agencies or instrumentalities, its officers oremployees, or any other person.
The Director of the Office of Management and Budget is authorized anddirecIed to publish this memorandum in the Federal Register.
THE WHITE HOUSE,
Washington, April 29, J994.
Editn, fial note: For the PresiderS% re'marks 'to _ Indian and Native Alaska Iriba! ieade_,tl_ wA_k)v Compdotxcrn of Pmszdentzo/13ocmzw..n_ (ve]. 30, Issue 181
HelnOnllne -- 59 Fed Reg 22952 1994
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Federal Water Pollution Control Act 173-225-020
(c) Have annual sales of one million dollars or less of the
goods or services produced using the processes regulated bythe waste chscharge permit; and
(d) Pay an annual wastewater discharge perrrat feegreater than five hundred dollars
(2) To receive a fee reductaon, the permit holder mustsubmit an application in a manner prescribed by the depart-ment demonstrating that the conditions of subseetaon (1) ofthis section have been met. The application shall bear a certi-ficataon of correctness and be signed.
(a) In the case of a corporation, by an authorized corpo-rate officer;,
0a) In the case of a lirmted parmerslup, by an authorizedgeneral partner,
(c) In the case of a general partnership, by an authorizedpartner, or
(d) [n the case of a sole proprietorship, by the proprietor(3) The department may verify the reformation con-
mined in the appheation and, If it determines that the permitholder has made false statements, may deny the fee reducuonrequest and revoke previously granted fee reductions.
(4) The permit fee for small businesses determined to beeligible under subsection (1) of this section shall be reduced
to fifty percent of the assessed annual pernut fee(5) If the annual gross revenue of the goods and services
produced using the processes regulated by the waste dis-charge permit is one hundred thousand dollars or tess, and theannual permit fee assessed imposes an extreme hardship tothe business, the small business may request an extreme hard-
ship fee reduction. The small business must provide suffi-cient evidence to support its claim of an extreme hardship Inno case will a perrmt fee be reduced below one hundred dol-lars.
(6) Facditaes covered under the industrial storm watergeneral pemut are not eligible for a small business fee reduc-tion under this section
[StatutoryAuthority. RCW 90 48.465 04-15-046, § 173-224-090. filed7/13/04,effeeUve8/13/04 StatutoryAuthomy:ChaptergO48RCW 96-03-041 (Order 94-21). § 173-224-090.filed 1/10/96,effectJve2/10/96, 94-10-027 (Order 93-08), § 173-224-090,filed 4/28/94. effective 5/29/9d, 92-03-131(Order91-45).§ t73-224-O90,filed1/21/92.effecav¢ 2/21/92 Statutory;Authonty. Chapter 43.21A RCW 89-12-027 and 90-07-015 (Order 89-8and 89-8A),§ 173-224-O90.filed5/31189and 3/13/90, effective4113190]
WAC 173-224-100 Administrative appeals to thedepartment. Any person aggrieved by a determination made
under this chapter by the department may file a written appealto the department no later than each fiscal year's first billingdue date for payment of fees. Such appeal shall state the rea-sons that the aggrieved person beheves that the department'sdetermination is contrary to the requirements of RCW90.48.465, and specific actions that he/she is requesting thatare consistent with those reqmrements. The department shalleither issue a revised determination or a statement upholdingthe original determination. A revised determination shall be
consistent with the requirements of RCW 90 48.465. Anyperson feeling aggrieved by the adrmmstrative appeals deci-sion made by the depa_meat regarding their permit fee mayobtain review thereof by fihng an appeal with the Pollution
Control Hearings Board, PO Box 40903, Olympia, Washing-ton 98504-0903, within thirty days of receipt of the depart-ment's decision. In addition, a copy of the appeal must be
(2005 E_}
served on the Department of Ecology, Attention. WaterQuality Program, PO Box 47696, Olympia, Washington98504-7696, within thirty days of receipt. These proceduresare consistent with the provisions of chapter 43 21B RCWand the roles and regulations adopted thereunder.
{StatutoryAuthonty ChaptergO48RCW94-10-027(Order93-08),§ 173-224-100,filed 4/28/94.effeeave 5/29/94, 92-03-131(Order 91-45), § 173-224-100, filed 1121192.effect,re 2/21/92 Statutory Authority. Chapter43 21A RCW 89-12-027 and 90-07-015 (Order 89-8 and 89-8AL § 173-224-100. filed 5/31/89and 3/t3/90,effective4/13/90 ]
WAC 173-224-110 Deposits. The department shalldeposit permit fee payments in the water quality permitaccount in the state treasury Funds collected shall not be
available for use by the department until appropriated by thelegislature
[Statutory Authority Chapter_43.21ARCW 89-12-027 and 90-07-015[Order 89-8and89-8A),§ 173-224-110,filed5/31/89and 3/13/90,effecuve4/13/90 I
WAC 173-224-120 Past due payments. Any personwho, by the effective date of ttus section, has not paid the feesand other amounts due under chapter 173-223 WAC shallcontinue to be obligated to pay such fees and amounts.
[StatutoryAuthontyChapter90.48RCW 92-03-131(Order91-45), § 173-224-120, filed 1121/92.effecuve 2/21/92 Statutory Authority Chapter43 21A RCW 89-12-027 and 90-07-015 (Order 89-8 and 89-8A). § 173-224-120,filed 5/31/89and3113190.effeetwe 4/131901
Chapter 173-225 WAC
FEDERAL WATER POLLUTION CONTROL ACT--ESTABLISHMENT OF IMPLEMENTATION
PROCEDURES OF APPLICATION FORCERTIFICATION
WAC
173-225-010 lntroducaon173-225-020 Purpose173-225-030 Pubhcnoticeand publicheanngs
WAC 173-225-010 Introduction. Section 401 of the
Federal Water Pollution Control Act (FWPCA) provides thatapplicants for a license or permtt from the federal govern-ment relating to any activity which may result in any dis-charge into the navigable waters shall obtain a certificationfrom the state in which the discharge originates, or will ong-inate, that any such discharge will comply with the applicableprovisions of sections 30 I, 302, 306, and 307 of the FWPCA.
The department of ecology, under chapter 90 48 RCW, hasbeen designated as the state water pollution control agencyfor all purposes of the FWPCA, and is authonzed to partner-pate fully In the programs of that act as well as to take allaction necessary to meet the requirements thereof
[Order 73-29,§ 173-225-010,filed 11/15/73I
WAC 173-225-020 Purpose. The purpose of this regu-lanoo is to establish procedures for pubhc notice and pubhcheanngs in relation to the processing of applications for cer-ttficatlon required by section 401 of the FWPCA.
[Order73-29. § 173-225-020,filed I 1/15F/3I
[Title 173 WAC--p. 567]
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173-225-030 Title 173 WAC: Ecology, Department of
WAC 173-225-030 Public notice and public hearings.
Whenever an application for certification required by section401 of FWPCA is filed with the department of ecology, thefollowing procedures pertaimng to pubhc nouce and publichearings shall apply:
(1) Public notice of an apphcation shall be performed inrelation to all applicauons, as follows
(a) By mailing notice of the application for certificationto persons and organizations who have requested the sameand to all others deemed appropriate; and
(b) When determined by the department as desirable mthe public interest, by pubhcation of a notice twace, Once eachon the same day of the week in two consecuuve weeks, in anewspaper of general circulation m the county m which theactavity described in the apphcation is located, and m suchother counties as are deemed appropriate by the department.The applicant for a certification shall be required to causesuch notice to be published m a form approved by the depart-ment and the applicant shall bear the cost of such publicationand provide an affidavit 6f pubhcatton to the department
(2) Any person desmng to present views on the applica-tion in relation to water polluuon control considerations shalldo so by provtchng the same in writing to the regional officeof the department of ecology idenufied in the nonce of appli-cation within 20 days after notice of the application was lastpublished or such longer period of time as the director maydetermine, or, m the case where notice is provided only byWAC 173-225-030 (l)(a), within the time period stated msaid nonce.
(3) If the department determines there is sufficient publicinterest in any apphcatmn, a public hearing for the submis-sion of oral views as well as written views shall be held.When this daterminadon is made before notice of application
ts performed, such notice shall set forth the time and place ofthe hearing, otherwise, a separate notice of pubhc heanngshall be made and such notice shall be distributed and pub-hshed in the manner provided in WAC 173-225-030(1).V_qaenever a public hearing is to be held, the requirement ofWAC 173-225-030(2) above in relauon to the tuning of sub-mitring written views shall not apply, but the deadline forsubmitting written views shall be set forth in the noticeannouncing the hearing.
[order DE 7545. § 173-225-030. filed 3/7/75, Order 73-29. § 173-225-030,
filed l 1/15/73 ]
Chapter 173-226 WAC
WASTE DISCHARGE GENERAL PERMITPROGRAM
WAC173-226-010 Pu/9os_173-226-020 Permat requited173-226-030 Defimticos
173.22.6-040 R_l_tiortshtp to chapters 173-216 and 173-220 WAC173-226-050 General perrmt coverage.173-226-060 General peraut preparatton_Prehmmary deterrmna-
non173-226070 Permit effluent hn-_mtionst73-226-080 Other terms and conditions173-226-090 Momtormg, recording, and repo_ng173-226-100 Prohibited discharge, s173-226-110 Fact sheets
173-226-120 Econormc tmpact analystst73-226-130 Pubhc nonce
173-226-140 Nouc_ to othergovemmem agencies
[Title 173 WAC--p. 5681
173-226-150173-226-160
173-226-170173-226-180
173-226-190173-226-200
173.226-210173-226-220173-226-230173-226-240173-226-250
Pubhc hearingsPublic access to reformation
Issuance of general permits
Comphanee schedulesAppealsApphcauonsforcoverageunderageneral permit.Transferof perrmtcoverageDurationand replacementof permasModificationand revocation of generalperrm_Revocauon of coverageunder a general pemutEnforcement.
WAC 173-226-010 Purpose. The purpose of this chap-ter is to establish a state general permit program, applicableto the discharge of pollutants, wastes, and other materials towaters of the state, including discharges to municipal sewer-
age systems. Permits issued under this chapter are designedto satisfy the requirements for discharge permits under sec-tions 307 and 402(b) of the federal Water Pollution ControlAct (33 U.S.C §1251) and the state law governing water pol-lution control (chapter 90 48 RCW).
[Statutory Authority Chapter9048 RCW 93-10-099(Order92-55),§ 173-226-010. filed 5/5/93, effective 5/19/93 I
WAC 173-226-020 Permit required. No pollutantsshall be dtschaxged to waters of the state from any pointsource, except as authorized by an individual permit issued
pursuant to chapters 173-216 and 173-220 WAC, or as autho-nzed through coverage under a general permit issued pursu-ant to this chapter. Coverage under a valid general permrtissued prior to the existence of this chapter will saUsfy the
permit requirements of this section.
[StatutoryAuthonty Chapmrg048RCW 93-10-099(Order92-55),§ 173-226-020, filed 515/93, effective 5119/93 I
WAC 173-226-030 Definitions. For purposes of this
chapter, the following definitions shall be apphcable.(1) "Administrator" means the admmistrator of the
United States Environmental Protection Agency.
(2) "Apphcation for coverage" means a form developedby, or approved by the department, which ts used by a dis-charger to apply for coverage under a general permit
(3) "Best management practices" (BMPs) means sched-ules of activities, prohibiuons of practices, maintenance pro-cedures, and other management practices to prevent or reducethe pollution of the waters of the state. BMPs also include
treatment requirements, operating procedures, and practicesto control plant site runoff, spillage or leaks, sludge or wastedisposal, or drainage from raw matenal storage.
(4) "Department" means the Washington state depart-ment of ecology.
(5) "Director" means the director of the department ofecology or the director's authonzed representauve.
(6) "Discharge of pollutant" and "discharge of pollut-ants" mean the addmon of any pollutant or combination of
pollutants to waters of the state, respectively(7) "Discharger" means the owner or operator of any
operation, facihty, or activity subject to regulatron underchapter 90 48 RCW
(8) "Domestic wastewater" means water carrying humanwastes, including kitchen, bath, and laundry wastes from res-idences, buddmgs, industnal estabhshments, or other places,
(2OO5Ed )
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Water Quality Standards----Surface Waters 173-201A-030
Into any waters of the state as wdl or is hkely to create a nui-sance or render such waters harmful, detrimental, or injuriousto the pubhc health, safety, or welfare, or to domestic, com-mercial, industrial, agricultural, recreational, or other legiti-mate beneficial uses, or to hvestock, wild animals, birds, fish,
or other aquatic life."Prtmary contact recreation" means activities where a
person would have direct contact wtth water to the pemt ofcomplete submergence including, but not htmted to, skin thv-ing, swimming, and water skiing
"Secondary contact recreation" means activiues where aperson_ water contact would be Itmlted (wading or fishing)to the extent that bacterial mfecttons of eyes, ears, resptratoryor digesttve systems, or urogenital areas would normally beavoided.
"Shoreline stabilization" means the anchoring of sod atthe water's edge, or in shallow water, by fibrous plant rootcomplexes; this may include long-term accreuon of sedimentor peat, along with shoreline progradation in such areas.
"Storm water" means that portton of precipitaUon thatdoes not naturally percolate into the ground or evaporate, butflows vaa overland flow, interflow, p_pes, and other features
of a storm water drainage system into a defined surface waterIx)dy, or a constructed mfiltratton facility.
"Storm water attenuation" means the process by which
peak flows from precipitation are reduced and runoff veloci-ties are slowed as a result of passing through a surface water-body.
"Surface waters of the state" includes lakes, rivers,
ponds, streams, roland waters, saltwaters, wetlands and allother surface waters and water courses within the jurlsd_ctmnof the state of Washington
"Temperature" means water temperature expressed in
degrees Celsius (*C)."Treatment wetlands" means those wetlands mtentmn-
ally constructed on nonwetland sites and managed for the pri-mary purpose of wastewater or storm water treatment, Treat-
ment wetlands are considered part of a collection and treat-ment system, and generally are not subject to the criteria ofthis chapter.
"l'roptuc State" means a classification of the productivtty
of a lake ecosystem Lake productivity depends on theamount of biologically available nutrients in water and sed_-menUs and may be based on total phosphorus (TP) Secchldepth and chlorophyll-a measurements may be used toimprove the trophlc state classification of a lake Trophicstates used in this rule include, from least to most nutrientrich, ultra-ohgotrophic, oligotrophtc, lower mesotrophic,upper mesotroph_c, and eutrophic.
,'"Turbidity" means the clarity of water expressed asnephelometrxc turbidity umtS (NTU) and measured with acalibrated turbldimeter.
"Upwelling" means the natural process along Washing-ton's Pacific Coast where the summer prevailing northerlywinds produce a seaward transport of surface water. Cold,deeper more saline waters rich in nutrients and low in dis-solved oxygen, rise to replace the surface water The coldoxygen deficient water enters Puget Sound and other coastalestuaries at depth where it dtsplaces the existing deep water
and eventually rises to replace the surface water. Such sur-
(2003 Ed.)
face water replacement results in an overall increase in sahn-ity and nutrtents accompanied by a depression m dissolvedoxygen. Locahznd upwelling of the deeper water of PugetSound can occur year-round under influence of tidal currents,
winds, and geomorphic features."USEPA" means the United States Environmental Pro-
tection Agency."Wetlands" means areas that are inundated or saturated
by surface water or ground water at a frequency and durationsufficient to support, and that under normal ctrcumstances dosupport, a prevalence of vegetation typically adapted for lifem saturated soil conditions Wetlands generally includeswamps, marshes, bogs, and stmilar areas. Wetlands do notinclude those amficial wetlands mtenUonally created fromnonwetland sites, including, but not limzted to, imgation anddratnage ditches, grass-lined swales, canals, detention facih-taes, wastewater treatment facihtles, farm ponds, and land-scape amanitles, or those wetlands created after July l, 1990,that were umntentionally created as a result of the construc-tion of a road, street, or highway Wetlands may includethose artificml wetlands intentionally created from nonwet-land areas to mitigate the conversion of wetlands. (Waterbod-ies not included in the defimtaon of wetlands as well as those
menttoned m the defimtion are still waters of the state )
"Wildhfe habztat" means waters of the state used by, orthat directly or indirectly provide food support to, fish, otherequattc life, and wildlife for any hfe history stage or actzvity
[Statutory Authority- Chapter 90 48 RCW and 40 CFR 131.97-23-064(Order9_19), § 173-201A-020,f'ded11/18/97.eft'eetlve12/19/97 StatutoryAuthority- Chapter9048 RCW 92-24-037(Order92-29), § 173-201A-020.filed11/25/92,effecuve 12/26/92]
WAC 173-201A-030 General water use and criteria
classes. The following criteria shall apply to the vartousclasses of surface waters m the state of Washington:
(I) Class AA (extraordinary).
(a) General charactensuc. Water quahty of this classshall markedly and uniformly exceed the reqmrements for allor substantially all uses.
(b) Characteristic uses. Characteristtc uses shall include,but not be limited to, the following
(1) Water supply (domestic, indusmal, agricultural).(ii) Stock watering
(iii) Fish and shellfish:
Salmomd migrataon, rearing, spawning, and harvesting.
Other fish migration, rearing, spawning, and harvestingClam, oyster, and mussel reanng, spawning, and har-
vesting.
Crustaceans and other shellfish (crabs, shrimp, crayfish,scallops, etc ) rearing, spawnnng, and harvesting.
(tv) Wildlife habitat.
(v) Recreation (primary contact recreation, sport fishing,boating, and aesthetic enjoyment).
(v0 Commerce and navtgatmn.
(c) Water quality criteria.(i) Fecal cohform organisms"
(A) Freshwater - fecal coliform organism levels shallboth not exceed a geometric mean value of 50 colonies/100mL and not have more than 10 percent of all samples
[T_tl¢173WAC---p. 4811
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173-201A-030 Title 173 WAC: Ecology, Department of
obtained for calculating the geometric mean value exceeding100 colonies/100 mL
(B) Marine water - fecal coliform organism levels shallboth not exceed a geometric mean value of 14 coloniealO0mL, and not have more than 10 percent of all samplesobtained for calculating the geometric mean value exceeding43 colonies/100 mL.
0i) Dissolved oxygen:(A) Freshwater - dissolved oxygen shall exceed 9.5
mg/L.(B) Marine water - dissolved oxygen shall exceed 7.0
mg/L. When natural conditions, such as upwelling, occur,causing the dissolved oxygen to be depressed near or below
7.0 rag/L, natural dissolved oxygen levels may be degradedby up to 0.2 mg/L by human-caused aetiviues.
0i0 Total dissolved gas shall not exceed 110 percent ofsaturation at any point of sample collection
(iv) Temperature shall not exceed 16 0°C (freshwater) or
13.0°C (manne water) due to human activities. When natural
conditions exceed 16.0°C (freshwater) and 13.0°C (marinewater), no temperature increases wdl be allowed which wall
raise die receiving water temperature by greater than 0 3°C.
Incremental temperature increases resulting from pointsource activities shall not, at any time, exceed t=23/(T+5)(freshwater) or t=8/(T-4) (manne water). Incremental tem-perature increases resulting from nonpoint source acUvit_esshall not exceed 2.8°C.
For purposes hereof, "t" represents the maximum per-misslble temperature increase measured at a mixing zoneboundary; and "r" represents the background temperature asmeasured at a point or points unaffected by the discharge andrepresentative of the highest ambient water temperature mthe vicinity of the discharge.
(v) pH shall be within the range of 6.5 to 8.5 (freshwater)or 7 0 to 8.5 (marine water) wtth a human-caused variationwtdiin the above range of less than 0.2 units.
(v0 Turbidity shall not exceed 5 NTU over backgroundturbidity when the background turbidity _s 50 NTU or less, orhave more than a 10 percent increase m turbidity when thebackground turbtdity ts more than 50 NTU.
(vii) Toxic, radioactive, or deleterious material concen-
lrauons shall be below those which have the potentaal eithersingularly or cumulatively to adversely affect characteristzcwater uses, cause acute or chronic conditions to the most sen-
s,Uve biota dependent upon those waters, or adversely affectpublic health, as determined by the department (see WAC173-201A-040 and 173-201A-050).
(viii) Aestbetac values shall not be impaired by die pres-ence of materials or their effects, excludmg those of naturalorigin, which offend the senses of sight, smell, touch, or taste
(2) Class A (excellent).
(a) General charaeterisuc Water quality of thts classshall meet or exceed the requtrements for all or substantiallyall uses.
(b) Characteristic uses Characteristic uses shall include,
but not be limited to, the following
(i) Water supply (domestic, industrial, agricultural).(ti) Stock watering.(li0 Fish and shellfish:
[Title 173 WAC--.p. 482]
Salmomd migration, rearing, spawning, and harvesting.Other fish migration, rearing, spawmng, and harvesting.Clam, oyster, and mussel rearing, spawning, and har-
vesnng.Crustaceans and other shellfish (crabs, shrimp, crayfish,
scallops, etc ) reanng, spawning, and harvesting.(iv) Wddlife habitat.
(v) Recreation (primary contact recreation, sport fishing,boating, and aesthetic enjoyment)
(v 0 Commerce and navigation.
(c) Water quality criteria:(0 Fecal cohform organisms.(A) Freshwater - fecal coliform organism levels shall
both not exceed a geometric mean value of 100 colonies/100mL, and not have more than 10 percent of all samplesobtained for calculating the geometric mean value exceeding200 colonies/100 mL
(B) Marine water - fecal cohform organism levels shallboth not exceed a geometric mean value of 14 colonies/100mL, and not have more than 10 percent of all samplesobtamed for calculating the geome_c mean value exceeding43 colome,_100 mL.
(i0 Dissolved oxygen.(A) Freshwater - dissolved oxygen shall exceed 8 0
mg/L.
(B) Marine water - dissolved oxygen shall exceed 6.0mg/L When natural conditions, such as upwelling, occur,causing die dissolved oxygen to be depressed near or below6 0 rag/L, natural dissolved oxygen levels may be degradedby up to 0.2 mg/L by human-caused activities.
(ill) Total dissolved gas shall not exceed 110 percent ofsaturaraon at any point of sample collection.
0v) Temperature shall not exceed 18 0°C (freshwater) or
16 0°C (marine water) due to human actavitles When natural
conditions exceed 18.0°C (freshwater) and 16 0°C (marinewater), no temperature increases will be allowed which will
raise the receiving water temperature by greater than 0 3°C.
Incremental temperature increases resulting from pointsource acttv,ties shall not, at any time, exceed t=28/(T+7)(freshwater) or t=12/(T-2) (marine water). Incremental tem-perature increases resulting from nonpoint source acttvttiesshall not exceed 2.8°C.
For purposes hereof, "t" represents the maxunum per-m*ss*ble temperature increase measured at, a mixing zoneboundary; and "T" represents the background temperature asmeasured at a point or points unaffected by the discharge andrepresentative of the hlghest ambient water temperature mthe vtcimty of the discharge
(v) pH shall be wtthm the range of 6 5 to 8.5 (freshwater)or 7.0 to 8.5 (marine water) with a human-caused variationwithin die above range of less than 0.5 units.
(vi) Turbidity shall not exceed 5 NTU over backgroundturbidity when the background turbidity is 50 NTU or less, orhave more than a 10 percent increase in turbidity when thebackground turbtdity is more than 50 NTU.
(vn) Toxic, radioactwe, or deleterious material concen-
trations shall be below those which have the potential eithersingularly or cumulatzvely to adversely affect characteristicwater uses, cause acute or chronic conditions to the most sen-
(2003 Ed )
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173-201A-070 Title 173 WAC: Ecology, Department of
-(b) Permits shall be subject to mochfication by thedepartment whenever it appears to the department the dis-charge violates water quality standards. Modification of per-mits, as provtded hereto, shall be subject to revtew in thesame manner as originally issued permits.
(6) No waste discharge permit shall be issued whichresults in a violation of estabhshed water quahty criteria,except as provided for under WAC 173-201A-100 or 173-201A-110
(7) Due consideration wdl be given to the precision andaccuracy of the sarnphng and analyttcal methods used as wellas exzsting condiUons at the time, in the application of the cri-teria.
(8) The analytical testing methods for these criteria shallbe in accordance with the "Guidelines Es_abhshing Test Pro-
cedures for the Analysis of PoUutants" (40 C.F R. Part 136)and other or supersechng methods published and/or approvedby the department following consultation w_th adjacent statesand concurrence of the USEPA
(9) Nothing in this chapter shall be interpreted to prohibitthe estabhshment of effluent lmaitations for the control of the
thermal component of any discharge in accordance w_th Sec-tion 316 of the federal Clean Water Act (33 U.S C 1251 etseq.).
(10) The primary means for protecting water quality mwetlands is through tmplementing the antidegradation proce-dures section (WAC 173-201A-070)
(a) In addition to designated uses, wetlands may haveexisting beneficial uses that are to be protected that includeground water exchange, shoreline stabdizat_on, and stormwater attenuation
(b) Water quality in wetlands is maintained and pro-tected by maintaining the hydrologm condttions, hydrophyticvegetation, and substrate characteristtes necessary to supportexisting and designated uses.
(c) Wetlands shall be delineated using the WashingtonState Wetlands Identification and Delineation Manual, maccordance with WAC 173-22-035.
[Slat-atoP/Authority- Chapter 9048 RCW and 40 CFR I._1.97-23-064
(Orde_9_19),§ 173-201A-000, filed I lllg/97,effecUve 12/19/97 Statutot'yAuthority: Chapter 90 48 RCW 92-24-.037 (Order 92-29), § 173-201A-060.
filed ! 1/2,5/92, effeeUve 12/26/92 1
WAC 173-201A-070 Antidegradation. The antide-gradation policy of the state of Washington, as generallyguided by chapter 90.48 RCW, Water Pollution Control Act,and chapter 90.54 RCW, Water Resources Act of 1971, isstated as follows:
(1) Existing beneficial uses shall be maintained and pro-tected and no further degradation which would interfere withor become injurious to existing beneficial uses shall beallowed.
(2) Whenever the natural conditaons of said waters are ofa lower quality than the criteria"assigned, the natural condi-tions shall constitute the water quality criteria.
(3) Water quality shall be maintamed and protected mwaters designated as outstanding resource waters in WAC173-201A-080.
(4) Whenever waters are of a higher qnahty than the cri-teria assigned for said waters, the existing water quahty shall
l'Etle 173 WAC---p. 488]
be protected and pollution of said waters which will reducethe extsting quality shall not be allowed, except in thosetnstances where:
(a) It is clear, after satisfactory pubhc participation andintergovernmental coordmatton, that overriding cons_der-attons of the public interest will be served,
(b) All wastes and other materials and substances d_s-
charged into said waters shall be provtded with all known,available, and reasonable methods of prevenraon, control, andtreatment by new and exasting point sources before dischargeAll activities which result in the pollutton of waters from
nonpomt sources shall be provided with all known, available,and reasonable best management practices; and
(e) When the lowering of water quality in high quality
waters is authorized, the lower water quality shall still be ofhigh enough quality to fully support all extstmg beneficialuses
(5) Short-term modification of water quality may be per-
mired as conditioned by WA.C 173-201A-110
[Slatutory Authority: Chapter 90.48 RCW 92-24-037 (Order 92-29), § 173-201A-070, fded I 1f25/92, effecnv¢ 12/26/92 1
WAC 173-201A-080 Outstanding resource waters.Waters meeting one or more of the following cnteria shall beconsidered for outstanding resource water des_gnation. Des-ignations shall be adopted in accordance with the provisionsof chapter 34 05 RCW, Admmistrauve Procedure Act.
(I) Waters m national parks, nauonal monuments,national preserves, national wildlife refuges, national wilder-ness areas, federal wild and scemc rivers, nanonal seashores,national manne sanetuartes, national recreation areas, nation-al scemc areas, and national estuarme research reserves;
(2) Waters m state parks, state natural areas, state wild-life management areas, and state scemc rivers,
(3) Documented aquatic habitat of priority species asdetermined by the department of wildlife;
(4) Documented critical habitat for populations of threat-ened or endangered species of native anadromous fish;
(5) Waters of exceptional recreational or ecological sig-nificance
[Sta_to:y Authority- Chapter 90 48 RC'W 92-24-037 (Ord_ 92-29), § 173-201A-080, filed 11/25/92, effecuve 12/26/92 ]
WAC 173-201A-100 Mixing zones. (1) The allowablesize and locataon ofa m_xing zone and the associated effluenthmlts shall be established in discharge permits, general per-mrs, or orders, as appropriate.
(2) A discharger shall be required to fully apply AKARTprior to being authorized a mixing zone.
(3) Mixing zone determinations shall consider criticaldischarge conditions.
(4) No mixing zone shall be granted unless the support-ing information clearly indicates the mixing zone would nothave a reasonable potential to cause a loss of sensitive orimportant habitat, substantially interfere with the exasting orcharacteristic uses of the water body, result in damage to theecosystem, or adversely affect public health as determined bythe department.
(2003 Ed )
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Chapter 173-201A WAC
WATER QUALITY STANDARDS FOR SURFACE WATERSOF THE STATE OF WASHINGTON
WACt73-20tA-010 Introduction.173-20i A-020 Defmntons173-201A-030 General water use andcntena classes.173-201A4)40 Toxic sub_tar)ce*173-201A-050 Radloacti_e substances173-201A4360 Generalcons_derattons173-201A-070 AmldegradatJon.173-201A-080 Omslandmg resourcewaters173-20iA-100 Mixing zones.173-20lA-110 Short-term modifications.173-201A-120 Genet_ classdmattons173-201A- 130 Specific cia._lficat t(ms---Freshwater.173-201A-140 Speo fie classtfieattons..--Marmewateri73-20tA-i50 Achr evemenl cons,derattonsIT3-20iA-i60 Impieracntatton173-201A-170 Surveillancei73-201A-i80 Enforcemem_
WAC 173-201A-010 Introduction. (1) The purpose of
this chapter is to establish water quality standards for surface
waters of the state of Washington consistent with public
health and public enjoyment thereof, and the propagation and
protection of fish, shellfish, and wildlife, pursuant to the pro-
visions of chapter 90.48 RCW and the policies and purposesthereof
(2) This chapter shallbe mvicwcd periodicallyby the
department and appropriaterevisionsshallbe undertaken.
(3)The water use and qualitycntcna setforthIn WAC
173-201A-030 through 173-201A- 140 areestablishedincon-
formance withpresentand potentialwaterusesof thesurface
watersof thestateof Washington and inconsldcrationof the
natural water quality potential and limitations of the same.
Compliance with the surface water quality standards of the
state of Washington require compliance with chapter 173-
201A WAC, Water quality standards for surface waters of the
state of Washington, and chapter I73-204 WAC, Sediment
management standards.
{StatutoryAuthority Chapter 90 48 RCW 92-24-037 (Order 92-29). § 173-201A-010. filed i I/25/92. effective 12/26/92 }
WAC 173-201A-020 Def'mitions. The followmg defi-nitions are intended to facilitate the use of chapter 173-201AWAC:
"Action value" means a total phosphorus (TP) value
established at the upper limit of the trophic states in each
ecoregion Exceedance of an action value indicates that a
problem is suspected. A lake-specific study may be needed to
confh'm if a nutrient problem exits
"Acute conditions" are changes in the physical, chemi-
cal, or biologic environment which are expected or demon-strated to result in injury or death to an organism as a result of
short-term exposure to the substance or detrimental environ-mental condition
"AKART" is an acronym for "all known, available, and
reasonable methods of prevention, control, and treatment."
(11118/97)
AKART shall represent the most current methodology that
can be reasonably required for preventing, controlling, or
abating the pollutants associated with a discharge. The con-
cept of AKART applies to both point and nonpomt sources of
pollution. The term "best management practices," typically
applied to nonpoint source pollution controls is considered a
subset of the AKART requirement. "The Stormwater Man-
agement Manual for the Puget Sound Basin" (1992), may be
used as a guideline, to the extent appropnate, for developing
best management practices to apply AKART for storm water
discharges.
"Background condmons" means the biological, chemi-
cal, and physical conditions of a water body, outside the area
of influence of the discharge under consideration. Back-
ground sampling locations in an enforcement action would be
up-gradient or outside the area of influence of the discharge
If several discharges to any water body exist, and enforce-
ment action is being taken for possible violations to the stan-
dards, background sampling would be undertaken immedi-
ately up-gradmnt from each discharge. When assessing back-
ground condmons m the headwaters of a disturbed watershed
it may be necessary to use the background conditions of aneighboring or similar watershed as the reference conditions.
"Best management practices (BMP)" means physical,structural, and/or managerial practices approved by the
department that, when used singularly or in combination, pre-
vent or reduce pollutant discharges.
"Biological assessment" is an evaluation of the biologi-
cal condition of a water body using surveys of aquatic com-munity structure and function and other direct measurements
of resident biota in surface waters.
"Bog" means those wetlands that arc acidic, peat form-
lng, and whose primary water source is precipitation, with lit-
tle, if any, outflow.
"Carcmogen" means any substance or agent that pro-
duces or tends to produce cancer in humans. For implementa-
tion of this chapter, the term carcinogen will apply to sub-stances on the United States Environmental Protection
Agency lists of A (known human) and B (probable human)
carcinogens, and any substance which causes a significant
increased incidence of benign or malignant tumors in a sin-
gle, well conducted animal bioassay, consistent with the
weight of evidence approach specified in the United States
Environmental Protection Agency's Guidelines for Carcino-
genic Risk Assessment as set forth in 51 FR 33992 et seq. as
presently pubhshed or as subsequently amended or repub-hshed
"C_omc conditions" are changes in the physical, chem-
ical, or biologic environment which are expected or demon-
strated to result m injury or death to an organism as a result of
[ElL 173-201A WAC--p. II
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173-201A-020 Water Quality Standards---Surface Waters
repeated or constant exposure over an extended period ofume to a substance or demmental environmental condition.
"Created wetlands" means those wetlands intentionally
created from nonwetland sites to produce or replace naturalwetland habitat.
"Critical conditson" is when the physical, chemical, and
biological characteristics of the receiving water environment
interact with the effluent to produce the greatest potential
adverse impact on aquatic biota and existing or characteristic
water uses For steady-state thscharges to nverine systems
the critical condition may be assumed to be equal to the 7Q l0
flow event unless determined otherwise by the department.
"Damage to the ecosystem" means any demonstrated orpredicted s_ess to aquatic or terresU-ial organisms or commu-
nities of organisms which the department reasonably con-eludes may interfere m the health or survival success or natu-
ral sa-ucture of such populatxons This stress may be due to,
but is not limited to, alteration in habitat or changes m water
temperature, chemistry, or turbidity, and shall consider the
potential build up of discharge constituents or temporal
increases in habitat alteration which may create such stress inthe long term.
"Department" means the state of Washington department
of ecology.
"Director" means the director of the state of Washingtondepartment of ecology
"Drainage ditch" means that portion of a designed and
constructed conveyance system that serves the purpose oftransporting surplus water;, this may include natural water
courses or channels incorporated m the system design, but
does not include the area adjacent to the water course orchannel
"Ecoreglons" are defined using EPAs Ecoregions of the
Paczfic Northwest Document No 600/3-86/033 July 1986 byOmemlk and Gallant.
"Fecal coliform" means that portion of the coliformgroup which is present in the intestinal tracts and feces of
warm-blooded animals as detected by the product of acid or
gas from lactose m a suitable culture medium within twenty-
four hours at 44.5 plus or minus 0 2 degrees Celsius.
"Geometric mean" means either the nth root of a product
of n factors, or the antdoganthm of the arithmetic mean of the
logarithms of the individual sample values
"Ground water exchange" means the discharge and
recharge of ground water to a surface water. Discharge ts
inflow from an aqmfer, seeps or springs that increases the
available supply of surface water. Recharge is outflow down-
gradient to an aquifer or downstream to surface water for
base flow maintenance. Exchange may include ground water
d*scharge in one season followed by recharge later in the
year
"Hardness" means a measure of the calcium and magne-
sium salts present m water For purposes of this chapter,
hardness ts measured m milhgrams per hter and expressed as
calcium carbonate (CaCO_)
"Irrigation ditch" means that portion of a designed and
constructed conveyance system that serves the purpose oftransporting _rfigation water from its supply source to its
place of use, this may include natural water courses or chan-
lCh. 173-201A WAC--p. 2l
nels incorporated in the system design, but does not include
the area adjacent to the water course or channel.
"Lakes" shall be thstmguished from rivenne systems as
being water bodies, including reservoirs, with a mean deten-tion time of greater than fifteen days.
"Lake-specific study" means a study intended to quantify
existing nutrient concentrations, determine existing charac-
teristic uses for lake class waters, and potential take uses The
study determines how to protect these uses and if any uses are
lost or impaired because of nutrients, algae, or aquatic plants
An appropriate study must recommend a criterion for total
phosphorus (TP), total mtrogen (TN) in p.g/l, or other nualent
that impairs characteristic uses by causing excessive algae
blooms or aquatic plant growth
"Mean detention time" means the time obtained by
dividing a reservoir's mean annual mimmum total storage by
the thirty-day ten-year low-flow from the reservoir.
"Msgratron or translocation" means any natural move-
ment of an organism or commumty of organisms from one
locality to another locahty.
"Mixing zone" means that portion of a water body adja-cent to an effluent outfall where mixing results in the dilution
of the effluent wsth the receiwng water. Water quality criteria
may be exceeded m a mixing zone as conditioned and pro-vlded for m WAC 173-201A-100.
"Natural couditJons" or "natural background levels"means surface water quality that was present before any
human-caused pollution. When estimating natural condttlons
m the headwaters of a disturbed watershed it may be neces-
sary to use the less disturbed conditions of a neighboring orsimdar watershed as a reference condition.
"Nonpoint source" means polluuon that enters any
waters of the state from any d_spersed land-based or water-
based activities, including but not limited to atmospheric dep-
ositron, surface water runoff from agricultural lands, urbanareas, or forest lands, subsurface or underground sources, or
discharges from boats or manne vessels not otherwise regu-
lated under the National Pollutant Discharge Ehmmation
System program
"Permit" means a document issued pursuant to RCW
9048 160 et seq or RCW 90.48.260 or both, specifying the
waste treatment and control requirements and waste dis-
charge conthtions
"pH" means the negative logarithm of the hydrogen ionconcentrauon.
"Pollution" means such contamination, or other alter-
ation of the physical, chemical, or biological properties, of
any waters of the state, including change m temperature,
taste, color, turbtthty, or odor of the waters, or such dischargeof any liqmd, gaseous, solid, radioacave, or other substance
into any waters of the state as will or ts likely to create a nm-
sance or render such waters harmful, detrimental, or injurious
to the public health, safety, or welfare, or to domestic, com-
mercial, industrial, agricultural, recreauonal, or other legiti-
mate benefioal uses, or to hvestock, wild ammals, b_rds, fish,
or other aquatic hfe
"Pnmary contact recreatron" means activities where a
person would have threct contact with water to the point of
complete submergence mclodmg, but not limited to, skin div-
ing, swimming, and water slomg.
(11118/97)
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Water Quality Standards----Surface Waters 173-201A-030
"Secondary contact recreation" means acuvit]ea where a
person's water contact would be limited (wading or fishing)to the extent that bacterial infections of eyes, ears, respiratory
or dtgesuve systems, or urogenital areas would normally be
avoided
"Shoreline stabihzauon" means the anchoring of soil at
the water's edge, or m shallow water, by fibrous plant root
complexes; this may include long-term accretion of sediment
or peat, along with shoreline progradation in such areas."Storm water" means that portion of precipitation that
does not naturally percolate mto the ground or evaporate, butflows via overland flow, mterflow, pipes, and other features
of a storm water drainage system into a defined surface water
body, or a constructed infiltration facility"Storm water attenuation" means the process by which
peak flows from precipitauon are reduced and runoff veloci-
ties are slowed as a result of passing through a surface water-
body."Surface waters of the state" includes lakes, rivers,
ponds, streams, inland waters, saltwaters, wetlands and allother surface waters and water courses within thejunsdlctlon
of the state of Washington
"Temperature" means water temperature expressed m
degrees Celsms (°C)."Treatment wetlands" means those wetlands intention-
ally constructed on nonwetland sites and managed for the pri-
mary purpose of wastewater or storm water treatment Treat-
ment wetlands are considered part of a collection and treat-
ment system, and generally are not subject to the criteria of
this chapter.
"Troph]c state" means a classification of the productivity
of a lake ecosystem. Lake productivity depends on the
amount of biologically available nutrients m water and seth-
ments and may be based on total phosphorus (TP). Secchi
depth and chlorophyll-a measurements may be used to
improve the trophic state classification of a lake. Trophic
states used m this rule include, from least to most nutrient
rich, uhra-ohgotrophlc, oligotrophlc, lower mesotrophic,
upper mesotrophic, and eutrophic.
"Turbidity" means the clarity of water expressed as
nephelometric turbidity units (NTU) and measured with acalibrated turbtdlmeter
"Upwelling" means the natural process along Washing-
Ion's Pacific Coast where the summer prevailing northerly
winds produce a seaward transport of surface water. Cold,
deeper more saline waters rich in nutrients and Jow m dls-
solved oxygen, rise to replace the surface water The cold
oxygen deficient water enters Puget Sound and other coastal
estuaries at depth where it displaces the existing deep water
and eventually rises to replace the surface water. Such sur-
face water replacement results in an overall increase m salin-
ity and numents accompanied by a depression m dissolved
oxygen. Localized upwellmg of the deeper water of Puget
Sound can occur year-round under influence of tidal currents,
winds, and geomorphlc features."USEPA" means the United States Environmental Pro-
tection Agency.
"Wetlands" means areas that are inundated or saturated
by surface water or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do
(ll/Igt97)
support, a prevalence of vegetation typically adapted for lifein saturated soil conditions Wetlands generally include
swamps, marshes, bogs, and similar areas. Wetlands do not
include those artificial wetlands intentionally created from
nonwetland sites, including, but not limited to, irrigaUon and
drainage ditches, grass-hned swales, canals, detention facili-ties, wastewater treatment facilities, farm ponds, and land-
scape amenities, or those wetlands created after July 1, 1990,
that were unintentionally created as a result of the construc-
tion of a road, street, or highway Wetlands may include
those artificial wetlands intenUonally created from nonwet-
land areas to mitigate the conversion of wetlands. (Waterbod-les not included in the definition of wetlands as well as those
mentioned m the definition are still waters of the state.)
"Wildlife habitat" means waters of the state used by, or
that directly or mthrectly provide food support to, fish, other
aquatic life, and wildlife for any life history stage or activity.
[Statutory Authority. Chapter 90.48 RCW and 40CFR 131 97-23-064
(Order 94-19). § 173-201A-620 filed I 1/I8/97.effeellve 12/19/97 Statutory
Authority ChaptergO48RCW 92-24.037(Order92-29),§ 173-201A-020.
filed 11/25/92. effectave 12/26/92 ]
WAC 173-201A-030 General water use and criteria
classes. The following criteria shall apply to the variousclasses of surface waters m the state of Washington"
(1) Class AA (extraordinary).
(a) General characteristic. Water quality of this class
shall markedly and uniformly exceed the requirements for all
or substantially all uses
(b) Characteristic uses Characteristic uses shall include,
but not be limited to, the following.
(i) Water supply (domestic, indusmal, agricultural).
(n) Stock watenng
(dO Fish and shellfish"
Salmomd migration, rearing, spawning, and harvesting
Other fish migration, rearing, spawning, and harvesting
Clam, oyster, and mussel rearmg, spawning, and har-
vestingCrustaceans and other shellfish (crabs, shrimp, crayfish,
scallops, etc.) reanng, spawnmg, and harvesting
(iv) Wildlife habitat
(v) Recreation (primary contact recreation, sport fishing,
boating, and aesthetic enjoyment).
(v0 Commerce and navigation
(c) Water quality criteria-
(i) Fecal coliform organisms.
(A) Freshwater - fecal coliform organism levels shall
both not exceed a geometric mean value of 50 colonies/100
mL and not have more than t0 percent of all samples
obtained for calculating the geomemc mean value exceeding
100 colonies/100 mL
(B) Manne water - fecal coliform organism levels shall
both not exceed a geomemc mean value of 14 colonies/100
mL, and not have more than 10 percent of all samples
obtained for calculating the geomemc mean value exceeding
43 colonies/100 mL
(it) Dissolved oxygen
(A) Freshwater - dissolved oxygen shall exceed 9.5
mg/L.
[Ch. 173-201A WAC--p. 31
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173-201A-030 Water Quality Standards---Surface Waters
(B) Marine water - dissolved oxygen shall exceed 7.0
mg/L. When natural condxtions, such as upwelling, occur,causing the dissolved oxygen to be depressed near or below
7.0 mg/L natural dissolved oxygen levels may be degradedby up to 0.2 mg/L by human-caused actxvmes
(iii) Total dissolved gas shall not exceed 110 percent of
saturation at any point of sample collection.
0v) Temperature shall not exceed 16.00C (freshwater) or
13.0°C (manne water) due to human aetivines. When natural
conditions exceed 16 0*C (freshwater) and 13.0"C (marine
water), no temperature increases will be allowed which will
raise the receivmg water temperature by greater than 0.3°C.
Incremental temperature increases resul6ng from point
source activities shall not, at any Ume, exceed t=23/(T+5)(freshwater) or t--8/(T-.4) (marine water). Incremental tem-
perature increases resulting from nonpoint source activiues
shall not exceed 2.8"C.
For purposes hereof, "t" represents the maximum per-
missible temperature increase measured at a mtxing zone
boundary, and "T" represents the background temperature as
measured at a point or points unaffected by the dtscharge and
representative of the highest ambtent water temperature inthe vicinity of the discharge
(v) pH shall be within the range of 6.5 to 8.5 (freshwater)or 7.0 to 8.5 (marine water) with a human-caused vanation
within the above range of less than 0 2 units.
(v0 Turbsthty shall not exceed 5 NTU over backgroundturbidity when the background turbidity is 50 NTU or less, or
have more than a 10 percent increase m turb_dtty when thebackground turbidity ts more than 50 NTU.
(vii) Toxic, radioacave, or deleterious material concen-
tratioas shall be below those which have the potenaal etther
singularly or cumulatively to adversely affect characteristic
water uses, cause acute or chronic conditions to the most sen-
sitive biota dependent upon those waters, or adversely affect
public health, as determined by the department (see WAC173-201A-040 and 173-201A-050).
(viii) Aesthetic values shall not be impaired by the pres-
ence of materials or their effects, excluding those of natural
origin, which offend the senses of sight, smell, touch, or taste
(2) Class A (excellent).
(a) General characteristic. Water quahty of this class
shall meet or exceed the requirements for all or substantmllyall uses.
Co) Characteristic uses. Characterist,c uses shall include,
but not be hmited to, the following-
(i) Water supply (domesttc, industrial, agncuhural)
(ii) Stock watenng.
(iii) Fish and shellfish.
Salmonid migration, rearing, spawning, and harvesting
Other t'tsh migration, reanng, spawning, and harvesting.
Clam, oyster, and mussel rearing, spawning, and har-
vestmg
Crustaceans and other shellfish (crabs, shrimp, crayfish,
scallops, etc.) reanng, spawning, and harvesting
(iv) Wildlife habitat.
(v) Recreation (primary contact recreation, sport fishmg,boating, and aesthetic enjoyment).
(vi) Commerce and navlgalaon.
[Ch. 173-201A waC--p. 41
(c) Water quahty criteria:
(i) Fecal cohform organisms:
(A) Freshwater - fecal coliform organism levels shall
both not exceed a geometric mean value of 100 colomes/100
mL, and not have more than 10 percent of all samples
obtained for calculating the geome_ic mean value exceeding200 colonies/100 mL
(B) Manne water - fecal coliform organtsm levels shall
both not exceed a geometric mean value of 14 colontes/100
mL, and not have more than I0 percent of all samples
obtained for calculating the geomeWic mean value exceeding43 colomes/100 mL.
(ii) Dissolved oxygen:
(A) Freshwater - dissolved oxygen shall exceed g.0
mg/L
(B) Manne water - dissolved oxygen shall exceed 6 0
mg/L. When natural conditions, such as upwellmg, occur,
causing the dissolved oxygen to be depressed near or below
6 0 rag/L, natural dissolved oxygen levels may be degradedby up to 0 2 mg/L by human-caused activities.
(m) Total dissolved gas shall not exceed I l0 percent ofsaturat,on at any point of sample collection
0v) Temperature shall not exceed 18 0°C (freshwater) or
16.0°C (manne water) due to human activities. When natural
condiaons exceed 18 0°C (freshwater) and 16 0°C (marine
water), no temperature increases will be allowed which will
raise the receiving water temperature by greater than 0 3"C.
Incremental temperature increases resulting from point
source activities shall not, at any time, exceed t=28/(T+7)(freshwater) or t=12/(T-2) (marine water). Incremental tem-
perature increases resulting from nonpomt source activitiesshall not exceed 2.8°C
For purposes hereof, "t" represents the maxtmum per-
m,sslble temperature increase measured at a m_xmg zone
boundary, and "T" represents the background temperature as
measured at a point or points unaffected by the thscharge and
representauve of the highest ambient water temperature m
the vicinity of the discharge
(v) pH shall be within the range of 6.5 to 8.5 (fi'eshwater)
or 7.0 to 8.5 (marine water) with a human-caused vanaaon
within the above range of less than 0.5 umts
(vi) Turbidity shall not exceed 5 NTU over background
turbidity when the background turbidity is 50 NTU or less, or
have more than a 10 percent increase m turbidity when the
background turbidity is more than 50 NTU.
(vii) Toxic, radioactive, or deleterious matertal concen-
trauons shall be below those which have the potential either
singularly or cumulattvely to adversely affect characteristicwater uses, cause acute or chrontc condiuons to the most sen-
stove biota dependent upon those waters, or adversely affect
public health, as determined by the department (see WAC
173-201A-040 and 173-201A-050)
(viii) Aesthettc values shall not be impaired by the pres-
ence of materials or thezr effects, excluding those of natural
origin, which offend the senses of sight, smell, touch, or taste
(3) Class B (good).
(a) General characteristic. Water quality of this class
shall meet or exceed the requirements for most uses
(11118/97)
WaterQualityStandards---SurfaceWaters 173-201A-030
(b) Characteristic uses. Characteristic uses shall include,
but not be limited to, the following-
(i) Water supply (industrial and agricultural)(u) Stock watering
0ii) Fish and shellfish
Salmonid m_gralion, reanng, and harvesting.
Other fish migration, rearing, spawning, and harvesting.
Clam, oyster, and mussel reanng and spawmng.
Crustaceans and other shellfish (crabs, shrimp, crayfish,
scallops, etc.) rearing, spawning, and harvesting.0v) Wddhfe habitat.
(v) Recreation (secondary contact recreauon, sport fish-
rag, boating, and aesthetic enjoyment)
(vi) Commerce and navigauon
(c) Water quahty criteria:
(i) Fecal coliform organisms:
(A) Freshwater - fecal coliform organism levels shall
both not exceed a geometric mean value of 200 colomes/100
mL, and not have more than l0 percent of all samples
obtained for calculating the geometric mean value exceeding400 colonies/100 mL.
(B) Manne water - fecal cohform organism levels shallboth not exceed a geometric mean value of 100 colomes/100
mL, and not have more than 10 percent of all samples
obtained for calculating the geometric mean value exceeding200 colonies/100 MI.
(ii) Dissolved oxygen:
(A) Freshwater - &ssolved oxygen shall exceed 6.5
mg/L.
(B) Manne water - dissolved oxygen shall exceed 5 0
mg/L. When natural con&tions, such as upwelhng, occur,
causing the dissolved oxygen to be depressed near or below
5 0 mg/L, natural dissolved oxygen levels may be degradedby up to 0.2 mg/L by human-caused actwilies.
(tit) Total dissolved gas shall not exceed 110 percent of
saturation at any point of sample collection.
(iv) Temperature shall not exceed 21.0°C (freshwater) or
19.0°C (marine water) due to human acuvmes. When natural
conditions exceed 21.0°C (freshwater) and 19.0"C (man ne
water), no temperature increases will be allowed which wdl
raise the recelvmg water temperature by greater than 0.30C.
Incremental temperature increases resulting from point
source activities shall not, at any time, exceed t=34/(T+9)
(freshwater) or t=16/(T) (marine water). Incremental temper-
ature increases resulting from nonpomt source activities shall
not exceed 2.8°C
For purposes hereof, "t" represents the maximum per-
miss_ble temperature increase measured at a mixing zone
boundary; and "T" represents the background temperature as
measured at a point or points unaffected by the discharge and
representative of the inghest ambient water temperature mthe vicinity of the discharge.
(v) pH shall be within the range of 6.5 to 8.5 (freshwater)and 7.0 to 8.5 (marine water) with a human-caused variation
within the above range of less than 0.5 units.
(vi) Turbidity shall not exceed 10 NTU over background
turbidity when the background turbldaty is 50 NTU or less, or
have more than a 20 percent increase m turbidity when the
background turbidity is more than 50 NTU.
(11118/97)
(wi) Toxic, radioactive, or deleterious material concen-
trations shall be below those which have the potential esther
singularly or cumulatively to adversely affect characteristic
water uses, cause acute or chrome conditions to the most sen-
sllive biota dependent upon those waters, or adversely affect
public health, as determined by the department (see WAC
173-201A-040 and 173-201A-050)
(vdi) Aesthetic values shall not be reduced by dissolved,
suspended, floating, or submerged matter not attributed tonatural causes, so as to affect water use or taint the flesh of
edible species.
(4) Class C (fair).
(a) General charactenslic. Water quahty of this class
shall meet or exceed the reqmrements of selected and essen-tial uses
(b) Characteraslic uses Charactenslic uses shall include,
but not be hm_ted to, the following.
(i) Water supply (industrial).
(ti) Fish (salmomd and other fish migration).
(iti) Recreation (secondary contact recreation, sport fish-
rag, boating, and aesthetic enjoyment).
(iv) Commerce and navigation
(c) Water quahty criteria - marine water:.
(0 Fecal cohform orgamsm levels shall both not exceed
a geometric mean value of 200 colonies/100 mL, and not
have more than 10 percent of all samples obtained for calcu-
lating the geomemc mean value exceeding 400 colonies/100mL
0i) Dissolved oxygen shall exceed 4.0 mg/L. When nat-
ural conditions, such as upwelhng, occur, causing the &s-
solved oxygen to be depressed near or below 4.0 mg/L, natu-
ral dtssolved oxygen levels may be degraded by up to 0 2
mg/L by human-caused acuv_ttes
(m) Temperature shall not exceed 22.0"C due to human
activities When natural con&ttons exceed 22.0°C, no tem-
perature increases wdl be allowed which will raise the receiv-
ing water temperature by greater than 0.3"C.
Incremental temperature increases shall not, at any lime,
exceed t=20/(T+2)
For purposes hereof, "t" represents the maximum per-
m_sslble temperature increase measured at a mixing zone
boundary; and "T" represents the background temperature as
measured at a point or points unaffected by the discharge and
representative of the highest ambient water temperature in
the vtcm_ty of the dtscharge
0v) pH shall be within the range of 6.5 to 9 0 wtth a
human-caused variation w_thin a range of less than 0.5 units
(v) Turbidtty shall not exceed 10 NTU over background
turb_&ty when the background turbl&ty is 50 NTU or less, or
have more than a 20 percent increase in turbl&ty when the
background turbidity ts more than 50 NTU
(vi) Toxic, radioactive, or deleterious material concen-
trations shall be below those whtch have the potential either
singularly or cumulattvely to adversely affect characteristic
water uses, cause acute or chrome conditions to the most sen-
stlive bsota dependent upon those waters, or adversely affect
pubhc health, as determined by the department (see WAC
173-201A-040 and 173-201A-050)
[Ch. 173-201A WAC--p. 5]
173-201A-030 Water Quality Standard.9--_urface Waters
(vii) Aesthetic values shall not be interfered with by the
presence of obnoxtous wastes, slimes, aquatic growths, ormaterials which will tarot the flesh of edtble species.
(5) Lake class.
(a) General charactenstie Water quality of thts classshall meet or exceed the requirements for all or substanaallyall uses.
(b) Charactenstic uses. Characteristic uses shall include,
but not be hmited to, the following:
(i) Water supply (domestic, industrial, agricultural)
(ii) Stock watenng.
(tit) Fish and shellfish:
Salmonid m_gration, rearing, spawning, and barvestmg.
Other fish mlgraUon, reanng, spawning, and harvesting.
Clam and mussel reanng, spawning, and harvestmg.
Crayfish rearing, spawmng, and harvesting.
(iv) Wddhfe habttaL
(v) Recreation (primary contact recreation, sport fishing,
boating, and aesthetic enjoyment).
(vi) Commerce and navigation
(c) Water quahty criteria'
(i) Fecal coliform organism levels shall both not exceed
a geometric mean value of 50 colonies/100 mL, and not have
more than 10 percent of all samples obtained for calculating
the geometric mean value exceedmg I00 colomes/100 mL.
(it) Dtssolved oxygen - no measurable decrease fromnatural conditions.
(tit) Total dissolved gas shall not exceed 110 percent of
saturataon at any point of sample collection.
0v) Temperature - no measurable change from natural¢ondttlons.
(v) pH - no measurable change from natural condiuons
(vi) TurbidRy shall not exceed 5 NTU over background
condluons
(xai) Toxic, radioactive, or deleterious matenal concen-
trations shall be below those whtch have the potential either
smgularly or cumulatively to adversely affect characteristic
water uses, cause acute or chromc condtUons to the most sen-
stove biota dependent upon those waters, or adversely affect
pubhc health, as determined by the department (see WAC173-201A-040 and 173-201A-050).
(viii) Aesthetic values shall not be impatred by the pres-
ence of materials or their effects, excludmg those of natural
origin, wluch offend the senses of stght, smell, touch, or taste.
(6) Establishing lake nutrient criteria.(a) The following table shall be used to atd m establish-
mg rtutrtent crttena
(WAC 173-201A-030, Table 1) See table on following page.
ICh. 173-201A WAC--p) 6] (11/18/97)
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Water Quality Standards---Surface Waters 173-201A-040
Lakes m the Willamette, East Cascade Foothills, or Blue
Mountain ecoregions do not have recommended values andneed to have lake-specific studies in order to receive criteria
as described in (c)(t) of this subsection.
Co) The following actions are recommended if ambient
momtonng of a lake shows the epihmnetic total phosphorus
concentrataon, as shown m Table I of ttus section, is below
the action value for an ecoregion:
(i) Determine trophlc status from existing or newly gath-
ered data. The recommended minimum sampling to deter-mine trophie status Js calculated as the mean of four or more
samples collected from the epdmmion between June through
September in one or more consecutive years. Sampling must
be spread throughout the season.
(ii) Propose criteria at or below the upper limit of the
trophic state; or
(iii) Conduct lake-specific study to determme and pro-
pose to adopt appropriate critena as described in (c) of thissubsection
(c) The following acuons are recommended if ambient
monitoring of a lake shows total phosphorus to exceed the
action value for an ecoregion shown in Table 1 of this section
or where recommended ecoregional action values do notexist-
(t) Conduct a lake-specific study to evaluate the charac-
teristic uses of the lake. A lake-specific study may vary
depending on the source or threat of impairment. Phytoptank-
ton blooms, toxic phytoplankton, or excessive aquatic plants,
are examples of various sources of impairment. The follow-
lng are examples of quantitative measures that a study may
describe: Total phosphorus, total mtrogen, chlorophyll-a,
dissolved oxygen in the hypohmmon if thermally stratified,
pH, hardness, or other measures of existing condit,ons and
potential changes m any one of these parameters.
(i0 Determine appropriate total phosphorus concentra-
tions or other nument criteria to protect characteristic lake
uses. If the existing total phosphorus concentration is protec-
tive of characteristic lake uses, then set cntena at existing
total phosphorus concentration If the existing total phospho-
rus concentration is not protective of the existing characteris-
tic lake uses, then set criteria at a protective concentration
Proposals to adopt appropnate total phosphorus criteria to
protect characteristic uses must be developed by considering
techmcal information and stakeholder input as part of a pub-lic mvolvement process equivalent to the Administrative Pro-
cedure Act (chapter 34.05 RCW)
(iii) Determine if the proposed total phosphorus criteria
necessary to protect characteristic uses _s achievable. If the
recommended cnterion is not achievable and if the character-
tstic use the cntenon is intended to protect is not an existing
use, then a higher criterion may be proposed m conformance
with 40 CFR part 131 10
(d) The department will consider proposed take-specific
nutnent criteria during any water quality standards rule mak-
ing that follows development of a proposal. Adoption by rule
formally establishes the cntena for that lake.
(e) Pnormzatlon and investigation of lakes by the depart-
ment will be initiated by listing problem lakes in a watershed
needs assessment, and scheduled as part of the water quality
program's watershed approach to pollution control Tlus pn-
(I I/I 8/t)7}
ontization will apply to lakes identified as warranting a crite-
ria based on the results of a lake-specific study, to lakes war-
ranting a lake-specific study for establishing criteria, and to
lakes requiring restorataon and pollution control measures
due to exceedance of an established criterion The adoption
of nutrient cnteria are generally not intended to apply to lakes
or ponds with a surface area smaller than five acres; or to
ponds wholly contained on private property owned and sur-
rounded by a single landowner;, and numents do not drain or
leach from these lakes or pnvate ponds to the detriment of
other property owners or other water bodies; and do not
impact designated uses in the lake. However, if the land-
owner proposes criteria the department may consider adop-tion
(f) The department may not need to set a lake-specific
cntena or further investigate a lake if existing water quality
conditions are naturally poorer (higher TP) than the action
value and uses have not been lost or degraded, per WAC 173-201A-070(2)
IStatutory Authority Chapter 90 48 RCW and 40 CFR 131.97-23-064
(Order 94-19) § 173-201A-030 filed 11/18/97. effective 12/19/97 Statutory
Authority Chapter9048RCW 92-24-037(Order92-29) § 173-201A-030.
filed 11/25/92 effecnve 12/26/92 1
WAC 173-201A-040 Toxic substances. (1) Toxic sub-
stances shall not be introduced above natural background lev-
els in waters of the state which have the potential either sin-
gularly or cumulatively to adversely affect characteristic
water uses, cause acute or chrome toxicity to the most sensi-
tive biota dependent upon those waters, or adversely affect
pubhc health, as determined by the department.
(2) The department shall employ or require chemical
testing, acute and chronic toxicity testing, and biological
assessments, as appropriate, to evaluate compliance with sub-
section (1) of this section and to ensure that aquatic commu-
nities and the existing and characteristic beneficial uses of
waters are being fully protected.
(3) The following critena shall be apphed to all surface
waters of the state of Washington for the protection of aquatic
life The department may revise the following cntena on a
state-wide or waterbody-specific basis as needed to protect
aquatic life occumng in waters of the state and to increase the
technical accuracy of the critena being applied The depart-
ment shall formally adopt any appropriate revised criteria as
part of this chapter in accordance with the provisions estab-
lished in chapter 34 05 RCW, the Administrative Procedure
Act The department shall ensure there are early opportuni-
ties for public review and comment on proposals to develop
revised critena. Values are [.tg/l., for all substances except
Ammonia and Chloride which are mg/L
Freshwater Manne Water
Substance: Acute Chrome Acute Chrome
Aldnn/Dteldrm 2 5a 0 0019b
Ammonia f c g d
(un-,omzed NH3) hh
Arsenic dd 360 0c 190 0d
Cadmmm dd t e j d
Chlordane 2 4a 0 0043b
071a 0 0019b
0 233h.e 0 035h.d
69 0c.II 36 0d,
cell
420c 93d
009a 0004b
[Ch. 173-201A WAC--p. 71
173-201A-040 Water Quality Standards---Surface Waters
Substance
Freshwater Marine Water
Acute Chrome Acute ChrOntc
Chloride (Dissolved) k 860 Oh,c 230 Oh,d
Chlorine (Total Residual) 19 0c I I Od 13 0c 7 5d
Ch lorpyri los O0_C 0041d 0011c 0 0056d
Chrommm (Hex) dd 15 Oc.l.n 10 0d.Lt 1.100 Oc.l.ll 500dJI
Chrommm(TrO gg m.c n.d
Copper dd oc p,d 4 8cJI 3 Id.II
CyanlO* ce 22 Oc 5 2M I 0c.mm
DDT (and mctabohtes) I la 0001b O.13a 0001b
D¢ldntVAIdnn e 2.5a 0 0019b 071a 0 0019b
Eodos_fan 0 22a 0 056b 0 034a 0 008"/b
EacLnn 0 Iga 00023b 0037a 00023b
Haprachlor 0 5.?.a 0 0038b 0053a 0 0036b
Hexachlorocyclohexane
(Lindnne) 20a 0 0$b 0 16a
Lead dd q.c rd 210 0cJI 8 Id.II
Mercurys 2Ac.kk.dd 0012d.ff I 8c.JI dd 0025d.ff
Nickel dd t.c u.d 74 OcJl 8 2d.H
Parath,on 0065C 0,0l 3d
Pentachlorophenol (PCP) w,c v.d 13 Oc 7 9d
Polyclflonnated
Biphenyls (PCBs) 2 0b 0 014b I0 0b 0 030b
Selenium 20 0c.ff 50rift 290c.ll.dd 71 0d.
x,IlMd
Silver dd y.a I 9a.I I
Toxaphen¢ 0 73C.z 0 0002d 0 2lc.z 0 0002d
Zmcdd aa.c bbM 90 0c.l[ gl O0.]l
Notes to Table
a.An ntsranlan¢ous concentration not tO be exceeded at any time
b.A 24-hour average not to be exceeded
c.A I-hOur average ooncemra[iott not to b_ exceeded more thaxt OnCe
e',ery three years on the average.
d.A 4-day average concentration not to be exceeded more than once
e,,ery three )ears on the a_erag¢
e Aldnn is metabolically converted to Dieldrin Therefore. the sum ofthe AIdnn and DreJdrnt co_centrattotLs are COmpared "ulth theDmldrm criteria.
f Shall not exceed the numerical value given by
0 52 + (FT)(FPHX2)
"._here: FT'= I0_TC_hl. TCAP <:T < 30
P-F= 1(_oo3_nl - 0 g T < TCAP
FPH= l'8<pH<-9
F'PH= (I + 10_':'rH)) + I 25.6..5 < pH < g 0
"]'CAP= 20"C. SalmonMs present.
TCAP= .?.5°C: Salmomds absent.
g Shall not exceed the numerical '.'aloe given by
0 $0 + (FT)(FPHXRATIO)
there RATIO = 135 77_pH<9
RATIO =:
(20 25 x I 0 ° _-pm) + (i + 10 O 4-;,IJ_) 6.5 < pH $ 7.7
whent-FT and FPH are as shown m (0 above except
TCAP= 15°C. Salmonlds present.
TCAP= 200C. Salmonlds absent
[Ch. 173-201A WAC--p. Sl
h Measured nt milhgrams per hter rather than micrograms per liter
t < (0944Xe(1 128[ln(hardoess)]-3 828)) at hardness= 100 Conver-
stun factor (CF) of 0 944 IS ha.,dnass dependent CF LS calculated
for other hardnesses as follows CF= I 136672 - [(In hard-
oessX0041838)]
j < (0909Xe(07852[In(hardness)]-3 490)) at hardness= 100 Conver-
slons factor (CIO of 0 909 is hardness dependent CF ts calcu-
lated for other hardnesses aS follows CF= I 101672 - [(in hard.
nessXO041838)]k Criterion based on d_ssolved chloride m association with sodium
This criterion probably wdl not be adequately protective when
the chloride is associated wRh poras_lum calcium, or magne-
sium. rather than sodmm
I Sabmty dependent effects At low salinity the l-hour average may
oct be suffic)ently protechve
m _; (0 316)e (O'glgOlln{Mrd_ss)l+3 68S)
n S (0 g6Oy-.(0 s J 90l_ hard_ssII+ 1.5611
o < (0 960Xe (0 9422[In(haNneSs)l - 1,464))
p _ (0 960Xe O'_'4sOn°u'd''_ll .t 4_))
q _ (0 791)(e II'z?3[lnth_rdn_s)l -l 460)) at hardness= I(X) Conversmnfactor(OF)of0791 is hardnessdependem CFiscalcolated for
other hardnesses as follows- CF= 1 46203 - [(in hard-
nessXO 145712)1
r < (0 791xeI l_';'31ln{hardnessH "4 705)) at hardness= 100 Convermon
factor (CF) of 0 791 ts hardness dependent CFts calculated forother hardnesges as follows CF= I 46203- [(In hard-
nessg0 145712)]
s If the four-day average chrome concentratmn _s exceeded more than
once In a three-year period the edible pot'lton of the consumed
species should be analyzed Said edible tissue concentrations
shall not be allowed to exceed I 0 ms/ks of methylmercury
t.S (0 c)ggxe(O 8460[tnthzn_e_)} *3-_6 [ 2))
u < (0 997Xe t0"846011r'th_s)l *) ,64S))
v < e [ l 005(pH) -S2901
w < e II O05_pH) -4 830]
X The _tatus of the fish community should be monnored whenever the
concentration of selenmm exceeds 5 0 ug/I nt salt water
y -< (0 g5Xe tt _L,,(_,.'_mssl1.6_21)
z.Chatmel Calfish may be more acutely sensitive
aa < (0 97gx¢ (0 S4"7311t_h_rdness)l+0 S6C4))
bb <: (0 986Xe (° S473pmhard_)l +0 7614))
cc Nonlethal effects (growth, C- 14 uptake, and chlorophyll product ran)to dtatom_ (Thalasslostra aesttvalis and Skeleronema costatum)
_hlch are common tO Washtngton's waters have been noted at
levels below the estabhshed ertterm The importance of these
effects to the diatom populattons and the aquatic system is suffi-
ctently in questmn to persuade the state to adopt the USEPA
National Cntena value (36 i.lg/L) as the state threshold criteria.howe',er, wherever practical the ambient concentrations shouldnnt be allowed to exceed a chronic marine concentration Of '21
_g/L
dd These ambient criteria m the table are for the dissolved fraction
The cyanide criteria are based on the weak acid d_ssoctablemethod The metals criteria may not be used to calculate totalrecoverable eff}nent bruits unless the seasomd partitioning of thedissolved to total metals m the ambient water are known When
this mformattoo Is ahem. these metals cntetqa shah be applied as
total recoverabte values, determined by back-calculation, using
the conversion factora mcon_orated In the crlrenon equations
Metals criteria may be adjusted on a s_te-spee_fic basis when data
are made available to the department clearly demonstrating the
effectwe use of the water effects ratio approach established by
USEPA as generally guided by the procedures m USEPA Water
Quality Standards Handbook December 1993. as supplememod
or replaced Information which Is ascd to develop effluent hmRs
based on applying metals partmonmg studms or the water effectsratio approach shall be tdemtfied in the p_-_mit fact sheet devel-
oped purSuant to WAC 173-220.060 or 173-226- I 10, as appropn-
(I III_,/9_)
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Water Quality Standards--Surface Waters 173-201A-060
ate, and shall be made avadable for the public comment penodrequffed pursuant to WAC 173-220-050 or 173-226-130(3), as
appropnate.
ee The craeda for cyangle is based on the weak and dtssncmble methodm the 17th Ed. Standard Methods for the Examination of Water
and Wagtewater, 4500-CN I and as revised (see footnote dd.above)
if.These cr_erza arc based on the rotal-recove_ble fractron of the
metal
gg Where methods to measure mvalent chromium are unavadable,
these criteria are to be represented by total-recoverab[e chro-mium
hh Tables for the coDYet'slon of tot_ ammonm to un-lonlz¢_ _monm
for freshwaret can be found in the USEPA's Quahty Cnrena for_ratcr. 1986 Criteria concentrattonsbased on totalammoma for
maianc water can be found m USEPA Ambient Water QuahtyCriteria for Ammonza (Saltwatet)-19$9, EPA440/5.88.004 Apnl1959.
h Conversion factor to calculate dissolved metal concentratron ksO.982
jj Conversion factor to calculate dissolved metal concentration Is0.962.
k]LConve_ton factor tocalculate d_ssolved metal concenlratron _s0 85
It Marine comermon factors (CI=)used for calculating disSOlvedmetalsCOTICC'flO'aIIOOS Coflvcr$1on factors are applicable to both acuteand chronm cntena for all metals except mercury CF for met-cur,/ks appheable to the acute criterion only Conversron factorsare already mcoq:xn_tedtaro the crirerla In the table Dkssolvedcrilerrofl: crltenofl X CF
Metal CF
Arsenic 1 000
Cndmmm 0 994
Chrommm (VD 0 993
Copper 0 83
Lead 0951
Mercury 0 85
Nickel 0.990
Selenium 0 998
Sdver 0 85
7,nc 0 946
mm The cyanide cntena are 9.l pg/1 chronic and 2 gb_gtl acute and areapphcable only to waters v, Meh are cast of a hr_ from Point Rob-eas to Lawrence Point. to Green Point to Decepuon Pass; and
south from Deception Pass and of a hne from Panndge Point toPoint Wilson
(4) USEPA Quahty Cnteria for Water, 1986 shall be
used in the use and interpretation of the values hsted in sub-
section (3) of this section
(.5) Concentrations of toxic, and other substances with
toxic propensities not listed in subsecUon (3) of this section
shall be determined in consideration of USEPA Quality Cn-
teda for Water, 1986, and as revised, and other relevant infor-
mation as appropriate. Human health-based water quahty
cmeria used by the state are contained in 40 CFR 131.36(known as the Nauonal Toxtcs Rule)
(6) Risk-based critena for carcinogemc substances shall
be selected such that the upper-bound excess cancer risk is
less than or equal to one m one million.
[Statutory Author,ly Chapter 9048 RCW and 40 CFR 131 97-23-064
(Order 94-19). § 173-201A-040. filed ] 1/18/97 effective 12/19/97. Slam-
tory Authomy Chapter 9048 RCW 92-24-037 (Order 92-29). § 173-201A-040. filed 11/25/92. effecuve 12,'26/92 ]
Revlser's note: The bracketsand enclosed material in the text of theabove _etton occurred m the copy fded by the agency
(I Ill 8/97)
WAC 173-201A-050 Radioactive substances. (1) Del-eterious concentrations of radtoactive matenals for all classes
shall be as determined by the lowest practicable concentra-uon attainable and in no case shall exceed.
(a) 1/12.5 of the values listed m WAC 246-221-290
(Column 2, Table H, effluent concentrations, roles and regu-
lations for radiation protection), or
(b) USEPA Drinlong Water Regulations for radlonu-
cedes, as pubhshed in the Federal Register of July 9, 1976, orsubsequent revisions thereto.
(2) Nothing in thts chapter shall be interpreted to be
apphcable to those aspects of governmental regulatton of
radioactive waters which have been preempted from state
regulatton by the Atomic Energy Act of 1954, as amended, as
mterpreted by the United States Supreme Court in the casesof Northern States Power Co. v. Minnesota 405 U.S. 1035
(1972) and Train v. Colorado Pubhc Interest Research
Group, 426 U.S. 1 (1976)
[Statutory Authority Chapter 90 48 RCW and 40 CFR 131 97-23-064
(Order94-19) § 173-201A-050, filed I 1/Ig/97. cffeclwe 12/19/97 Statutory
Authority Chapterg048RCW 92-24-037(Order92-29).§ 173-201A-050.
filed I I/25/92. effectwe 12/26/92 ]
WAC 173-201A-060 General considerations. The fol-
lowing generalguidelinesshallapply tothe waterqualityco-terraand classificationsset forthm WAC 173-201A-030
through 173-201A-140 hereof
(I)At the boundary between watersof differentclasslfl-
cations,the waterquahty cmeria forthehigherclassification
shallprevail.
(2) In brackrshwaters of estuaries,where the freshand
marme water quality criteria differ within the same ctasmfica-
uon, the criteria shall be apphed on the barns of vertically
averaged salinity. The freshwater cntena shall be applied at
any point where ninety-five percent of the ventcally averaged
datly maximum sahntty values are less than or equal to one
part per thousand Manne criteria shall apply at all other Ioca-
ttons; except that the manne water quahty criteria shall apply
for dtssolved oxygen when the sahnity is one pan per thou-
sand or greater and for fecal cohform organisms when the
sahnity is ten parts per thousand or greater.
(3) In determining comphance wtth the fecal cohform
cntena in WAC 173-20tA-030, averaging of data collected
beyond a thtny-day period, or beyond a specific discharge
event under investtgation, shall not be permttted when such
averaging would skew the data set so as to mask noncomph-ance periods.
(4)(a) The water quality critena herein estabhsbed for
total dissolved gas shall not apply when the stream flow
exceeds the seven-day, ten-year frequency flood.
(b) The total dtssolved gas ctitena may be adjusted to aid
fish passage over hydroelecme dams when conststent with a
department approved gas abatement plan Tlus gas abatement
plan must be accompamed by fisheries management and
physical and biological momtormg plans The elevated total
dissolved gas levels are intended to allow increased fish pas-
sage wtthout causing more harm to fish populations than
caused by turbine fish passage The specific allowances for
total dtssolved gas exceedances are listed as special condi-tions for secUons of the Snake and Columbta nvers m WAC
173-201A- 130 and as shown m the following exempUon"
[Ch. 173-201A WAC--Ig 91
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173-201A-070 Water Quality Standards---Surface Waters
Special fish passage exemption for sections of the
Snake and Columbia rivers: When spilling water at damsis necessary to atd fish passage, total dissolved gas must not
exceed an average of one hundred fifteen percent as mea-
sured at Caruas/Washougal below Bonneville dam or as mea-
sured in the forebays of the next downstream dams Total dis-
solved gas must also not exceed an average of one hundred
twenty percent as measured in the tadraces of each dam
These averages are based on the twelve highest hourly read-rags in any one day of total dissolved gas. In addition, there is
a maximum total dissolved gas one hour average of one hun-
dred twenty-five percent, relative to atmospheric pressure,during spillage for fish passage. These special conditions fortotal dissolved gas in the Snake and Columbia rivers are
viewed as temporary and are to be reviewed by the year 2003.
(c) Nothing ra these special conditions allows an impactto existing and characteristic uses
(5) Waste thscharge permlts, whether issued pursuant to
the Nauonal Pollutant Dtscharge Eliminatton System or oth-
erwtse, shall be condaloned so the discharges authorized wdl
meet the water quality standards.
(a) However, persons thschargmg wastes in compliance
w_th the terms and condtttons of permtts shall not be subject
to civil and cnminal penalues on the basis that the discharge
vmlates water quality standards.
Co) Permtts shall be subject to modification by the
department whenever it appears to the department the dts-
charge vtolates water quahty standards. Modification of per-
msts, as provided herein, shall be subject to revtew m the
same manner as originally issued permits
(6) No waste discharge permtt shall be tssued whtch
results in a vtolation of estabhshed water quality criteria,
except as provtded for under WAC 173-201A-100 or 173-201A-110.
(7) Due consideration wdl be given to the preciston and
accuracy of the sampling and analyttcal methods used as well
as extsting condttions at the Ume, in the apphcation of the cri-teria
(8) The analytical testing methods for these criteria shall
be in accordance with the "Guutelines Establishing Test Pro-
cedures for the Analyszs of Pollutants" (40 C.F.R. Part 136)
and other or superseding methods pubhshed and/or approvedby the department following consultation with adjacent statesand concurrence of the USEPA.
(9) Nothing in this chapter shall be interpreted to prohibitthe establishment of effluent limttations for the control of the
thermal component of any dtscharge m accordance with Sec-tion 316 of the federal Clean Water Act (33 U.S.C. 1251 et
seq ).
(10) The prtmary means for protecting water quahty m
wetlands is through implementing the antldegradation proce-dures section _VAC 173-201A-070).
(a) In addtuon to designated uses, wetlands may have
existing beneficml uses that are to be protected that includeground water exchange, shorehne stabilization, and stormwater attenuatton.
(b) Water quahty m wetlands ts maintained and pro-
tected by maintaming the hydrologic conditions, hydrophytic
vegetation, and substrate charactensttcs necessary to support
existing and destgnated uses.
[Ch. 173-201A WAC--p. 10l
(c) Wetlands shall be delineated using the Washington
State Wetlands Identification and Delineation Manual, in
accordance with WAC 173-22-035.
[statmory Authoray Chapter 9048 RCW and 40 CFR 13i 97-23-064
(Order 94-19).§ 173-201A-060, f'ded l ll18/97,effecttve 12/19/97 Statutory
Authoray Chap_erg04$RCW 92-24-037(Order92-29) § 173-201A-060.
filed 11/25/92. effective 12/26/92.1
WAC 173-201A-070 Antidegradation. The antide-
gradation pohcy of the state of Washington, as generallygraded by chapter 90.48 RCW, Water Pollution Control Act,
and chapter 90.54 RCW, Water Resources Act of 1971, isstated as follows.
(1) Existing beneficial uses shall be maintained and pro-
tected and no further degradatton which would interfere with
or become injurious to existing beneficial uses shall beallowed
(2) Whenever the natural conditions of said waters are of
a lower quahty than the criteria assigned, the natural condi-
tions shall eonsutute the water quahty criteria.
(3) Water quahty shall be mamtained and protected m
waters designated as outstanding resource waters in WAC173 -201A-080.
(4) Whenever waters are of a higher quality than the cn-
tena assigned for satd waters, the existing water quahty shall
be protected and pollution of satd waters whrch wmll reduce
the existing quahty shall not be allowed, except in thoseinstances where;
(a) It ts clear, after sattsfactory public particlpanon andratergovernmental coordmation, that overriding consider-
attons of the pubhc interest will be served,
(b) All wastes and other materials and substances dis-
charged into satd waters shall be provided with all known,
available, and reasonable methods of prcvention, control, and
treatment by new and existing point sources before dzseharge.
All activ,ttes whtch result in the pollution of waters from
nonpeint sources shall be provided with all known, available,
and reasonable best management practices; and
(c) When the Iowenng of water quahty m high quality
waters ts authorized, the lower water quality shall stall be of
h_gh enough quality to fully support all existing beneficialuses
(5) Short-term modification of water quahty may be per-
mttted as conditioned by WAC 173-201A-110.
[Statutory Authomy- Chapter 90 48 RCW. 92-24-037 (Order 92-29). § 173-
201A-070. filed 11/25/92. effeut_ve 12/26/92 ]
WAC 173-201A-080 Outstanding resource waters.
Waters meeting one or more of the following criteria shall be
constdered for outstanding resource water designataon Des-
ignations shall be adopted in accordance with the provisions
of chapter 34 05 RCW, Administrative Procedure Act.
(1) Waters m nattonal parks, national monuments,
national preserves, national wildhfe refuges, nauonal wdder-
ness areas, federal wild and scemc rivers, national seashores,
national marine sanctuaries, national recreation areas,
national scenic areas, and national estuarme research
reserves,
(2) Waters m state parks, state natural areas, state wild-
life management areas, and state scenic rivers;
(11118/97)
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Water Quality Standards--Surface Waters 173-201A-100
(3) Documented aquatic habitat of priority species as
determined by the department of wildlife;
(4) Documented critical habitat for populations of threat-
ened or endangered species of native anadromous fish,
(5) Waters of exceptional recreational or ecological sig-nificance.
[StalutoryAuthonty Chapterg048RCW 92-24-037(Order92-29) § 173-
201A,.080 filed 11/25/92. effective 12/26/92 ]
WAC 173-201A-100 Mixing zones. (1) The allowable
size and location of a mixing zone and the assoctared effluent
limits shall be established in discharge permits, general per-
mits, or orders, as appropriate.
{2) A discharger shall be requtred to fully apply AKART
prior to being authorized a mixing zone.
(3) Mixing zone determinations shall consider critical
discharge conditmns.
(4) No mixing zone shall be granted unless the support-
ing information clearly mdlcates the mixing zone would not
have a reasonable potential to cause a loss of sensitive or
important habitat, substantially interfere with the existing or
characteristic uses of the water body, result in damage to the
ecosystem, or adversely affect public health as determined by
the department.
(5) Water quality criteria shall not be violated outside of
the boundary of a mixing zone as a result of the discharge forwhich the mixing zone was authorized.
(6) The s_ze of a mixing zone and the concentrations of
pollutants present shall be minimized.
{7) The maximum size of a mixing zone shall complywith the following:
(a) In rivers and streams, mixing zones, singularly or in
combinauon with other mixing zones, shall comply with the
most resmctive combination of the following (this size limi-
tartan may be applied to estuaries having flow characteristicsthat resemble rivers):
(I) Not extend in a downstream direction for a distance
from the discharge port(s) greater than three hundred feet
plus the depth of water over the discharge port(s), or extend
upstream for a distance of over one hundred feet,
(il) Not uulize greater than twenty-five percent of theflOW, and
(ill) Not occupy greater than twenty-five percent of the
width of the water body(b) In estuaries, mixing zones, singularly or in combina-
tion with other mixing zones, shall:
(i) Not extend in any horizontal direction from the dis-
charge port(s) for a distance greater than two hundred feet
plus the depth of water over the discharge port(s) as measured
during mean lower low water; and
(it) Not occupy greater than twenty-five percent of the
width of the water body as measured during mean lower lowwater. For the purpose of this section, areas to the east of a
line from Green Point (Fidalgo Island) to Lawrence Point
(Oreas Island) are considered estuanne, as are all of the Strait
of Georgia and the San Juan Islands north of Orcas Island To
the east of Deception Pass, and to the south and east of Admi-
ralty Head, and south of Point Wilson on the Quimper Penin-
sula, is Puget Sound proper, which is considered to be
entirely estuanne. All waters existing within bays from Point
(11118/97)
Wilson westward to Cape Flattery and south to the North
Jetty of the Columbia River shall also be categorized as estu-anne.
(c) In oceanic waters, mixing zones, singularly or in
combination with other/nixing zones, shall not extend in any
horizontal direction from the discharge port(s) for a distance
greater than three hundred feet plus the depth of water over
the discharge port(s) as measured during mean lower low
water. For the purpose of this section, all marine waters not
classified as estuarine in (bXd) of this subsection shall be cat-
egorized as oceanic.
(d) In lakes, and in reservoirs having a mean detention
t,me greater than fifteen days, mixing zones shall not beallowed unless it can be demonstrated to the satisfaction of
the department that:
0) Other siting, technological, and managerial options
that would avoid the need for a lake mixing zone are not rea-
sonably achievable;
(ii) Overriding considerations of the public interest wallbe served, and
(ill) All technological and managerial methods available
for pollution reduction and removal that are economically
achievable would be implemented prior to discharge. Such
methods may include, but not be limited to, advanced waste
treatment techniques.
(e) In lakes, and in reservoirs having a mean detention
time greater than fifteen days, mixing zones, singularly or in
combination with other mixing zones, shall comply with the
most resmcave combination of the following:
(i) Not exceed ten percent of the water body volume;
(u) Not exceed ten percent of the water body surface area
(maximum radial extent of the plume regardless of whether itreaches the surface); and
(in) Not extend beyond fifteen percent of the width of
the water body
(8) Acute eritena are based on numeric cntena and tox-
icity tests approved by the department, as generally guided
under WAC 173-201A-040 (1) through (5), and shall be met
as near to the point of discharge as practicably attainable
Compliance shall be determined by monitoring data or cali-
brated models approved by the department uuhzing represen-
tative dilution ratios. A zone where acute criteria may be
exceeded is allowed only if it can be demonstrated to the
department's satisfaction the concentration of, and duration
and frequency of exposure to the discharge, will not create a
barrier to the migration or translocauon of indigenous organ-
isms to a degree that has the potential to cause damage to the
ecosystem. A zone of acute criteria exceedance shall smgu-
laxly or in combination with other such zones comply with
the following maximum size requirements:
(a) In rivers and streams, a zone where acute criteria may
be exceeded shall comply with the most restrictive combina-
tion of the following (this size hmitatlon may also be applied
to estuaries having flow characteristics resembling rivers):
(i) Not extend beyond ten percent of the distance towards
the upstream and downstream boundaries of an authorized
mixing zone, as measured independently from the discharge
port(s);
(i0 Not utilize greater than two and one-half percent ofthe flow; and
[Ch. 173-201A WAC---p. Ill
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173-201A-110 Water Quality Standards--Surface Waters
(iii) Not occupy greater than twenty-five percent of the
width of the water body.
(b) In oceanic and estuanne waters a zone where acute
criteria may be exceeded shall not extend beyond ten percent
of the distance established in subsecuon (7)CO) of this sectmn
as measured indepondently from the dtscharge port(s).
(9) Overlap of mixing zones.
(a) Where allowing the overlap of mtxmg zones would
result m a combined area of water quahty erttena nonattain-ment which does not exceed the numeric size limits estab-
lished under subsection (7) of this section, the overlap may bepermitted if:
(1) The separate and combined effects of the discharges
can be reasonably determmed; and
0i) The combined effects would not create a bamer to
the mtgrauon or translocation of indigenous organisms to a
degree that has the potenUal to cause damage to the ecosys-tem.
Co) Where allowing the overlap of mixing zones wouldresult m exceedance of the numeric size limits estabhshed
under subsection (7) of this section, the overlap may be
allowed only where:
(0 The overlap qualifies for exemption under subsec-ttons (12) and (13) of this section; and
(it) The overlap meets the requirements estabhshed m (a)of this subsection.
(10) Storm water:
(a) Storm water discharge from any "point source" con-
taming "process wastewater" as defined m 40 C.F.R. Part
122.2 shall fully conform to the numeric size criteria in sub-
secttons (7) and (8) of this section and the overlap critena msubsection (9) of t/us section
(b) Storm water discharges not described by (a) of this
subsection may be granted an exemptton to the numenc size
critena in subsections (7) and (8) of this section and the over-
lap criteria in subsection (9) of this section, provided the dis-
charger clearly demonstrates to the department's satisfactionthat:
(i) All appropnate best management practices estab-
lished for storm water pollutant control have been apphed tothe discharge.
(ii) The proposed mtxing zone shall not have a reason-abJe potential to result m a loss of sensitive or important hab-
ntaL substanually mtefferc w0th the existing or characteristicuses of the water body, result m damage to the ecosystem, or
adversely affect public health as determined by the depart-ment; and
(iii) The proposed mixing zone shall not create a bamer
to the migration or translocauon of indigenous organisms to a
degree that has the potential to cause damage to the ecosys-tem.
(c) All mixing zones for storm water discharges shall be
based on a volume of mnoffeorrespondmg to a design storm
approved by the department. Exceedanees from the numeric
size criteria m subsecttons (7) and (8) of this section and the
overlap criteria in subsection (9) of this section due to prectp-
itatlon events greater than the approved design storm may be
allowed by the department, uf nt would not result m adverse
tmpaet to existing or characteristic uses of the water body or
ICh, 173-201A WAC--p. 121
result m damage to the ecosystem, or adversely affect pubhc
health as determined by the department.
(11) Combined sewer overflows complying with the
requirements of chapter 173-245 WAC, may be allowed an
average once per year exemption to the numeric size enteria
in subsections (7) and (8) of this section and the overlap cri-
teria in subsection (9) of this section, provided the discharge
complies with subsection (4) of this section,
(12) Exceedances from the numeric size cntenam sub-
secuons (7) and (8) of this section and the overlap criteria m
subsection (9) of this section may be considered by the
department in the following cases:
(a) For discharges existing prior to November 24, 1992,
(or for proposed discharges with engineering plans formally
approved by the depamnent prior to November 24, 1992);
(b) Where altenng the stze configuration is expected to
result in greater protection to exnsting and characteristic uses;
(c) Where the volume of water m the effluent is provid-
ing a greater benefit to the existing or charactenstic uses of
the water body due to flow augmentation than the benefit of
removing the discharge, if such removal is the remammg fea-sible option; or
(d) Where the exceedance is clearly necessary to accom-
modate important economic or social development m the aream which the waters are located.
(13) Before an exceedance from the numeric size criteria
m subsections (7) and (8) of this secdon and the overlap cn-
tena in subsection (9) of this secUon may be allowed under
subsection (12) of this section, it must clearly be demon-
strated to the department's satisfaction that:
(a) AKART appropriate to the d_scharge is being fully
applied;
(b) All siting, technological, and managerial options
wfuch would result m full or significantly closer compliance
that are economically achievable are being utilized, and
(c) The proposed mixing zone complies with subsection(4) of this section
(14) Any exemptions granted to the s_ze criteria under
subsection (12) of this section shall be reexamined during
each permit renewal period for changes m compliance capa-
bihty. Any significant increase m eapabdlty to comply shall
be reflected m the renewed discharge permit.
(15) The department may estabhsh permtt limits and
measures of comphance for human health based criteria
(based on hfetlme exposure levels), independent of this sec-tion.
(16) Sediment impact zones authorized by the depart-
ment pursuant to chapter 173-204 WAC, Sediment manage-
ment standards, do not satisfy the requirements of this sec-tion
[SiatmoryAuthortty ChaptergO48RCW 92-24-037(Order92-29) § 173-
201A-I00. filed I 1/25/92. effecttve 12/26/921
WAC 173-201A-110 Short-term modifications. The
criteria and special conditions established in WAC 173-
201A-030 through 173 -201 A- 140 may be modified for a spe-
cific water body on a short-term basis when necessary to
accommodate essential activities, respond to emergencies, or
to otherwise protect the public interest, even though such
activities may result in a temporary reduction of water quahty
(11/18/97)
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Water Quality Standards--Surface Waters 173-201A-120
conditions below those criteria and classifications established
by this regulation Such actlvlues must be conditioned,timed, and restricted (i e. hours or days rather than weeks or
months) in a manner that will minimize water quahty degra-
dation to existing and charactensuc uses In no case will any
degradation of water quality be allowed if this degradation
significantly interferes with or becomes injurious to charac-
teristic water uses or causes long-term harm to the environ-
menL
(1) A sbort-term modification may be issued In writing
by the director or his/her designee to an individual or entity
proposing the aquatic application of pesticides, includmg but
not limited to those used for control of federally or state listed
noxious and invaslve species, and excess populations of
native aquatic plants, mosquitoes, burrowing shrimp, and
fish, subject to the following terms and conthtions:
(a) A short-term modification wilt in no way lessen or
remove the project proponent's obhgations and liabilities
under other federal, state and local rules and regulauons.
(b) A request for a short-term modlficauon shall be made
to the department on forms supplied by the department Such
request shall be made at least thirty days prior to initiation of
the proposed acttvrty, and after the project proponent has
complied with the requn.ements of the State Env,ronmentalPolicy Act (SEPA);
(c) A short-term modification shall be valid for the dura-
tion of the activity requlnng modification of the criteria and
special conditions in WAC 173-201A-030 through 173-
201A-140, or for one year, whichever is less Ecology may
authorize a longer duration where the activity ts part of an
ongoing or long-term operation and maintenance plan, inte-
grated pest or noxious weed management plan, waterbody or
watershed management plan, or restoration plan. Such a planmust be developed through a public involvement process
consistent with the Administrative Procedure Act (chapter34.05 RCW) and be in compliance with SEPA, chapter
43 21C RCW, in which case the standards may be modified
for the duration of the plan, or for five years, whichever isless;
(d) Appropnate public notice as determined and pre-scribed by the director or his/her designee shall be given,
identifying the pesuclde, applicator, location where the pesti-
cide will be apphed, proposed timing and method of apphea-
tion, and any water use resmCtaons specified m USEPA label
provisions;
(e) The pesticide applieaUon shall be made at umes so asto:
(i) Minimize pubhc water use restrictions during week-
ends; and
(is) Avoid public water use resmctions dunng the open-
ing week of fishing season, Memorial Day weekend, Inde-
pendeoce Day weekend, and Labor Day weekend,
(0 Any additional conditions as may be prescribed by
the director or his/her designee.
(2) A short-term modification may be issued for the con-trOI or eradication of noxious weeds identified as such in
accordance with the state noxious weed control law, chapter
17.10 RCW, and Conlrol of spartma and purple loosestrife,
chapter 17.26 RCW Short-term modificauons for noxious
weed control shall be included in a water quality permit
(l 1/I 8/97)
issued in accordance with RCW 90.48.445, and the following
requirements:
(a) Water quality permits for noxious weed control may
be issued to the Washington state department of agriculture
(WSDA) for the purposes of coordmatmg and conducting
noxious weed control activities consistent with then" respon-
sthiliues under chapter 17.10 and 17.26 RCW. Coordination
may include noxious weed control activities identified in a
WSDA integrated noxious weed management plan and con-
ducted by individual landowners or land managers.
(b) Water quality permits may also be Issued to individ-
ual landowners or land managers for noxious weed control
acttvmes where such activities are not co_ered by a WSDA
integrated noxious weed management plan.
(3) The turbidity criteria estabhshed under WAC 173-
201A-030 shall be modified to allow a t_mporary mixing
zone during and immediately after necessary in-water orshoreline construcuon activities that result in the disturbance
of m-place sethments A temporary turbidity mixing zone is
subject to the constraints of WAC 173-201A-100 (4) and (6)
and is authorized only after the activity has received all other
necessary local and state permits and approvals, and after the
implementation of appropriate best management practices to
avoid or minimize disturbance of m-place sediments and
exceedances of the turbidity criteria. A temporary turbidity
mixing zone shall be as follows
(a) For waters up to 10 cfs flow at the time of construc-
tion, the point of comphance shall be one hundred feet down-
stream from activity causing the turbidity exceedance.
(b) For waters above 10 cfs up to 100 cfs flow at the time
of construction, the point of comphance shall be two hundred
feet downstream of activity causing the turbidity exceedance.
(c) For waters above 100 cfs flow at the time of construc-
tion, the point of compliance shall be three hundred feet
downstream of activity causing the turbidity exceedance.
(d) For projects working within or along lakes, ponds,
wetlands, estuaries, marine waters or other nonflowing
waters, the point of compliance shall be at a radius of one
hundred fifty feet from acovtty causing the turbidity exceed-
alice.
{Statutory Authority Chapter9048. RCW ap,d40 CFR |31 97-23-06d(Order 94-19) § 173-201A-I I0. filed I 1/I8/97.effecuve 12/19/97 StatutoryAuthority Chapier9048RCW.92-24-037(Order92-29) § 173-201A-110filed 11/25/92 effecl,ve 12/26/92 ]
WAC 173-201A-120 General classifications. General
classifications applymg to various surface water bodies notspecifically classified under WAC 173-201A-130 or 173-
201A-140 are as follows.
(1) All surface waters lying within national parks,national forests, and/or wdderness areas are classified ClassAA or Lake Class.
(2) All lakes and their feeder streams within the state are
classified Lake Class and Class AA respectively, except for
those feeder streams specifically classified otherwise.
(3) All reservoirs with a mean detention time of greater
than 15 days are classified Lake Class.
(4) All reservoirs with a mean detention tame of 15 daysor less are classified the same as the river secuon in which
they are located.
lob. 173-201A WAC---p. I3l
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173-201A-130 Water Quality Standards--Surface Waters
(5) All reservoirs established on preexisting lakes areclassified as Lake Class.
(6) All unclassified surface waters that are tributaries to
Class AA waters are classified Class AA. All other unclassi-
fied surface waters within the state are hereby classified ClassA.
[Statutory AuthomT Chapter 90 48 RCW 92-24-037 (Order 92-29). § 173-201A-120. filed 11/25/92. effective 12/26/92 I
WAC 173-201A-130 Specific classifications--Fresh-
water. Specific fresh surface waters of the state of Washing-ton are classified as follows:
(l) American Rivet. ClassAA
(2) Big Qudeene River and mbutanes Class AA
(3) Bumping River. Class AA
(4) Burnt Bndge Creek Class A
45) Cedar River from Lake Washmgton to the Maple- Class Awood Bridge (n,,er mile 4 1)
(6) Cedar River and mMtarleS from the Maplewood Class AABndge (nver mile 4 1) to Land_urg Dam (nvermile 21 6).
(7) Cedar Rner and tn'butartes from Landsburg Dam Class AA(nver mile 21 6) to headwaters Special condnlon -
no waste dt_charge will be permiaed
(8) Chehahs Rr.er from upper boundary of Grays Har- Class Abor at Cnamopohs (nver mile 3 1. longitude123045"45 - W) to Scammon Creek (river mile65 8)
(9) Chehalts River from Scammon Creek (nver mde Class A
65 8) to Newaukum Rl',er (n',er rode 75 2) Specialcondition - dlssot', ed oxygen shall exceed 5 0 mg/Lfrom June I to September 15 For the remainder of
the year. the dissolved oxygen shall meet Class Acriteria.
(10) CbehahsR,verfromNcwaukumRwer(nvermde Class A75 2) tO Rock Creek (nver mile 106 7)
(11) Chehahs Rwer. from Rock Creek (rwer rode 106 7) Class AAto headwaters.
(12) Chehahs River. south fork. Class A
(13) CllewuchRt',er Class AA
(14) Chv,vawa Rl_er Class AA
(15) CIspos Ri_er Class AA
06) Clearwater River Class A
(!7) Cle Elum River ClaSSAA
(18) Cloqualltm'l Creek. Class A
(19) CloverCreekfromnotletofLakeSpanav, aylomtet Class Aof Lake Steilacnom
(20) Columbia Rl'.er from mouth to the V,,_ashington- Clas'_ AOregon border (river rode 309.3). Specml ¢ondp
tions - temperature shall not exceed 20 0*C due tohuman activ_tms When natural conditions exceed
20 0*C. no temperature in_ will be allo_,ed
_htcb will raise the recewmg water ternperat m-e by
greater than 0 3"C. nor shall such temperature
increases, at any time, exceed 0 30C due to any sin-
gle source or l.l*C due to all such actrvities com-
bined Dtssol'. ed oxygen shall exceed 90 percent of
_turation Specml condJtton - special fish passageexemption as descnbod m WAC 173-201A.060(4Xb)
421) Columbia Rrver from Washington-Oregon border Class A(river mile 309 3) to Grand Coulee Dam (river mde
596.6) Special condmou from Washington-Oregonborder (river rode 309 3) to Priest Rapids Dam(n,.er rode 397 I) Temperature shall not exceed
20 O*C due to human activmes When natural con-
ditions exceed 20 O°C, no temperature increase will
be allowed which will mtse the receiving water
temperature by greater than 0.3°C. nor shall such
temperature increases, at any t_me exceed
t=34/(T+9) Special condmon- ,_pectal fish passageexemption as described m WAC 173-201A-060(4Xb)
(22) Columhm Rwer from Grand Coulee Dam (river Class AArode 596 6) to Canadmn border (river mde 745 O)
(23) ColvflleRiver Class A
(24) CowcemanRtverfrommouthtoMulhollandCreck Class A(river rode 18 4)
(25) Cowceman Rwer from Mulhotland Creek (nver Class AArode 18 4) to headwaters
(26) Cowhtz River from mouth to base of Rifle Lake Class ADam (river mile 52 0)
(27) Cowhtz River from base of Rifle Lake Dam (nver Class AAmile 52 0) to headwater_
(28) Crab Creek and trthutane,_ Class B
(29) Decker Creek. Class AA
(30) De_:hutes River from mouth to boundary of Sno- Class Aqualm_e National Forest (river mile 48 2)_
(31) De,chutes RP, er from boundary of Snoqualmm Class AANatzonal Forest (nver rode 48 2) to headwaters
(32) Dickey River Class A
(33) Dosewalh_ River and mbutartes Class AA
(34) Duckabush RP, er and tnbutanas Class AA
(35) Dungeness River from mouth to Canyon Creek Class A(re, er mde I0 8)
(36) Dungenass Rwer and tributaries from Canyon Class AACreek (river rode 10 8) to headwaters
(37) Duv, amlsh Rwer from mouth south of a line bear- Class B
mg 254* Irue from the NW comer of berlh 3. tempt-
hal No 37 to the Black River (river rode I I O)(Duwamlsh River continues as the Green Riverabove the Black R_ver)
(35) Elochoman River. Class A
(39) Elwha River and tributaries Class AA
(40) Emlat River from Wenatchce National Forest Class AA
boundary (river mile 20 5) to headwaters
(41 ) Grande Ronde River from mouth to Oregon border Class A(nver mile 37) Special condman - temperatureshall not exceed 20 OoC due to human actwmes
When natural condmous exceed 20 0°C no tem-
perature tocrease will be allowed which v.lll raise
the receiving water temperature by greater than
0 3"C. nor shall such temperature mcreases, at any
time. exceed t=34/4T+9)
(42) Grays River from Grays River Falls (river rode Class AA15 g) to headwaters
443) Green River 4Cowhtz County) Class AA
(44) GreenRwer(KmgCounty)fromBlackRiver(rlver Class Amile 110and point where Duwamlsh River comm-
ues as the Green Rt',er) to wast boundary of See27-'1"21N-R6E (west boundary of Flaming GeyserState Park at river mile 42 3)
(45) Green River (King County) from west boundary of Class AA
Sec 27-T21N-R6E (west boundary of RainingGeyser State Park. river mde 42 3) to west bound-ary of See 13-'I"21N-R7E (nver mile 59 I )
[Cb. 173-201A WAC--p. 14](11/15/97)
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Water Quality Standards---Surface Waters 173-201A-130
446) Grin River and mbutanee (King County) from Class AA
wesl bounda_ of Set:, 13-'r2l N-R7E (river rode
59 1) to headwaters Special coodtlJon - no waste
discha_e will t_ perIglltted
(47) Hamma Hamma Re'er and trlbutastas Class AA
(48) Hanaford Creek from momh to east boundary of Class A
Se.c 25-TI5N-R2W (aver mile 4 I ) Special condi-
tion - dissolved oxygen shall exceed 6.5 mg/L
(49) Hanaford Creek from east bounda_ of See 25- Class A
TI5N-R2W (aver mile 4 1) to headwaters
450) Hoh R_er and Inbatanes Class AA
451) HortuiamRwer(commuasasweatforkaboveeast Class B
fork) from mouth to nver mile 9 3 (Dekay Road
Badge) (upper hmn of tidal influenCe)
(52) Humptuhps Rwer and tributaries from mouth to Cla_ A
Olympic National Fore_ boundary on east fork
(aver mde 12.8) and wast fork (aver mile 40 4)
(main stem conlmu_ as west fork)
(53) Humptuhps River. east fork from Olympic Class AA
National Forest boundary (rwer rode 12.8) to head-
waters
(54) HumptuJ[pS Rwer. we_ fork from Olympic Class AA
Nat;oral Forest boundary (rwer mile 40 4) to head-
watfrs
(55) Issaquah Creek Class A
(56) Kalama Rwer from lower Kalama RiVer Fails (rr.er Class AA
mile IO 4) to headwater
(57) Klickttas River from Little Kliekltat Rwef (aver Class AA
mile 19 8) to boundary of Yaklma Indian Rescrva-tlOO
(58) Lake Washmgroa Ship Canal from Govemmeet Lake Class
Lock.s 4n',er mile I (3) tO Lake Washington (n',er
mile 8 6) Speo.al condnlon - Sallnny shall not
excend one part pet Ihou_nd (I 0 ppl) at any point
or depth along a line that transects Ihe ship canal at
Ihe Umversity Badge (mer mile 6 I)
(59) Lewrs Rwero east fork. from Muhon Falls (aver Class AA
mile 24 6) to headwaters
(60) Lmle Werlatchce Rwer Class AA
(61) Med_owRwerfmmmomhtoCh¢_.'uehRwer(n_er Class A
mile 50 l)
(62) Methow River from Chcwuch Rr,,er (nver mile Class AA
50 I) to headwaters
(63) Mill Creek from mouth to 13lh Street Bndge in Class B
Walla Walla (aver male 6 4) Specml condlltOO -
dissolved oxygen concentrat mn shall exceed 5 0
mgn_
(64) MdICmekfroml3thStreetBndgeinWallaWalla Class A
(=aver rode 6A) to Walla Walla Waterworks Dam
(n',er rode 11.5).
(65) Mill Creek and tributaries from clty of Walla Walla Class AA
Waterworks Dam (fryer rode 21 6) to headwaters,
Speckal coudmon - no waste dfscharge will be per-mitted
Naches River from Snoqualmte Nat]onal Forest Class AA
boundary (aver mile 35 7) to headwaters
Naselle Rwer from Naselle "Fails" (cascade at nver Class AA
mile lg 6) ro headwaters
Newaukum R,ver Class A
Nuequ_ly River from momh to Alder Dam (aver Class A
mile 44 2)
NL_qually River from Alder Dam (river mdc 44.2) Class AA
to headwaters.
Nooksack River from mouth to Maple Creek (nver Cla_s A
rode 49 T)
Nooksack River from Maple Creek (aver mile Class AA
49 7) to headwaters.
(73) Nooksack Rwer. South fork, from mouth to Skoo- Class A
kum Creek (nver rode 14 3)
(74) Nook.tack River. south fork, from Skookum Creek Class AA
(riverrode 14 3) to headwaters
(75) Nook_ River. middle fork Class AA
(76) Okanogan River Class A
(77) Palous¢ River from mouth to south fork (Colfax. Class B
rwer rode 89 6)
(78) Palouse RJ_er from south fork (Colfax aver mile Class A
89 6) to Idaho border (aver rode 123 4) Specml
condttson - lernperature shall not exceed 20.0°C
due tO human aclt',tllas V'/hefl natural condnlon_
exceed 20 0°C. no tempemlur¢ mcroase will be
allowed which will raise the receiving water tem-
pemlure by greater than 0 3"C nor shall such tem-
perature increases at any tame exceed t=34/(T+9)
(79) Pead Oredle Rwer from Canadmn border (aver Class A
mile 16 0) to Idaho border (nvcr mile 87 7) Special
conduton - lemperature shall not exceed 20 0oC
due to human a_wolas When natural cond=tmas
exceed 200°C no temperature increase wdl be
allowed which will raise the reee,ving water tem-
peraturo by greater than 0 3oc nor shall such tem-
perature increases at any time exceed t=34/(T+?).
(80) Pilchuck River from cry of Snohomtsh Water- Class AA
works Dam (nver rode 26 8) to headwaters
(gl) PuyallupRwerfrommoulhtorwermdelO. Class B
(82) Puyallup River from aver rode I 0 to Kings Creek Class A
(aver mile 31 6)
(83) Puyallup River from Kings Creek (aver mile 3i 6) Class AA
to head'.vaters
(84) Queers Rwer andtnbutanes Class AA
(85) Qudlayule Rwer Clas_ AA
(86) Qumauft Rwer and Inbulanes Clas,_ AA
(87) Salmon Creek (Clark Counly) Clas,; A
(8g) Satsop Rv.er from mouth to west fork (met mile Class A
6 4)
(89) Satsop R_ver ea,:l fork Clas,; AA
(90) Salsop Rwer. middle fork Class AA
(91) Satsop River west fork Class AA
(92) Skago River from mouth to SkJyou Slough-lower Class A
end (river mile 25 6)
(93) Skagt( Rwer and tnhutarles (includes Baker. SuaL Class AA
Smatlle and Cascade avers) from Sklyou Slough-
lower end (aver rode 25 6) to Canadian border
(river rode 127 0) Specml condition - Skagn Rwer
(Gorge hy-pass reach) from Gorge Dam (n',¢r rode
96 6) to Gorge Pov.erhouse (nver rode 94 2) Tem-
perature *;hall not exceed 21 °C due to human ac'tN-
rues. When natural condillons exceed 2I°C no
lemperature increase wdl he allowed which wall
raise the reeelvlOg water lemperalure by greater
than O 3 °C, nor shall such temperature increases, at
any ltme, exceed I=34/(T+9)
(94) Skokomlsh Rwer and Inbutarnes Class AA
(95) Skoukumchuck River from Bloody Run Creek CI&_s AA
(nver mde 21.4) to headwaters
(96) Skykomtsh Rr,'er from mouth to May Creek (above Class A
Gold Bar at aver rode 41.2)
(97) Skykomish Rlver from May Creek (above Gold Bar Clas'; AA
a[ nver m He 41 2) to headwaters
(98) Snake River from mouth to Washmglon-ldaho-
Oregon bo_der (n'.er rode 176 l) Special condi*
llon
[Ch. 173-201A WAC--p. 15]
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173-201A-130 Water Quality Standards--Surface Waters
(a) Below Clearwater Rwer (aver rode 1393) Tem-
peralttre shall not exceed 20,0°C due to human
a_ivRtes When natural condn)ons exceed 20 0*C.
no temperature increase wdl be allmved whmh wdlraise the recetvlng water temperature by greaterthan 0 3°C, nor
shall such temperature increases, at any time,exceed 1=34/(T+9) Specml coedxuno - special fishpassage exemptmn as dascnbed in WAC 173-201A-060 (4Xb)
Co) Above Clearwater River (aver rode 1393) Tern- Class A
perature shall not exceed 20 0°C due tohumanaclivmes When natural condntons exceed 20 0*C.
no temperature mcreas_ will be allowed wMCh
wdl raise the reeewmg water temperature by
greater than 0 3°C. nor shall such temperature
increases, at any ume exceed 0.3°(: due to any sin-
gle source or I• I *C due to all such achvmes com-bined.
(99) SnohomishRwerfrommouthandeastoflongnude Class A
122°13"40"W upstream to lathude 47°56'30"N
(southern I_p of Ebey Island at river mile 8 I ). Spe +coal condition + fecal cohform orgamsm levels shallboth not exceed a geomernc mean value of 200 col-
on ms/100 mL and nOt have more than 10 percent o fthe samples obtained for calculatmg Ihe mean valueexceeding 400 colonms/lO0 mL
(100) Snohomish River up.ream from latitude Class A
47056'30"N (suuthern tap of Ebey Island nver mz_c
8. I) to confluence wRh Skykomlsh and Soo--qualmm Rwer (nver mile 205)
(100 Snoqualmie Rwer and tributaries from mouth to Class A_e,_ boundary ofTwin FallsStalePark on south
fork(nverrode9 l)
002) Snoqualmie Rwer mMdl¢ fork ClassAA
(103) Sooqualmte Ri,.cr,northfork ClassAA
(104) Snoqualmle Rrvcr,southfork.from west boundary ClassAA
of Twin Falls State Park (rwer mde 9.1 ) to head-waters
(lO5) Sole.duck River f,nd tributaries Class AA
006) Spokane Rwer from mouth tO Long Lake Dam Class A(n'.errode33 9)+Specialcondition-temperature
shall not exceed 20 (Y'C due to human actlvnoes
When natural condttrons exceed 20 0°C no tem-
perature m_ease wdl be allowed wh=ch will raisethf fe_lVlOg water tempetalur_ by greater than
0 3"C. nor shall such temperature increases,at anytime. exceed t=34/(T+9)
(107) Spokane River from Lon 8 Lake Darn (n;er rode33+9) to Nine Male Bndge (n',er mule 58 0) Special¢Ondltrorts
(a) The a',emg¢ euph(x=czone concentrationoftotal
phosphorns (as P) shall not ex_d 2_g/'l.. during
the I_riOd of June I to October 31
00) Temperature shall notexceed 20 0"C. due to human Lake Class
a_vrhes When natural condmons exceed 20 OoC.
no temperature mcrea_ will be allowed which willraL._ the rec_vmg water temperature by greater
than 0+3"C. nor shall such tempenuore mcreasas, at
any time exceed 1=34/(T+9).
(108) Spokane River from Nine Md¢ Badge (rn, er rode Class A58.0) to the Idaho border (nver rode 96 5) Temper-
ature shall nOt exceed 20 0*C due to human acuvJ-
ues When natural conditions exceed 20 0*C no
temperature increase wdl be allowed whlch wdl
raiso the receiving water temperature by greater
than 0 3"C nor shall such temperature mcrease_, at
any time exceed I=34/(3"+9)
009) Stehekm River Class AA
(110) SttJlaguamush Riverfrom mouth to noah and suuth Class Aforks (aver rode 17 8)
(I I l) StlllaguamLSh River noah fork from mouth to Class A
Squire Creek (aver mile 31.2)
(I 12) Stfllagnaml_h River. noah fork. from Sqmre Creek Class AA(river mile 31 2) to headwaters
(I13) Stnllaguamlsh River south fork, from mouth to Class A
Canyon Creek (river retie 33 7)
(114) SllllageamJsh River, south fork. from Canyon Class AACreek (aver rode 33 7) to headwaters
(I 15) SulphurCreek. Class B
(l 16) Sultan Rwer from mouth to Chaplain Creek (river Class Arode 5 9)
(I 17) Sultan River and tributaries from Chaplain Creek Class AA(nver rode 5 9) to headwaters Specml condmun -
no waste dJscharge wdl be permLtted above city ofEverett Divermon Darn (nvermdc 9 4)
(I 18) Suma_ R wet from Canadian border (river mile 12) Class A
to headwaters (river mile 23).
(I 19) Tieton River Class AA
(120) Toh Rwer, south fork and tributaries from mouth to Class AA
west boundary of Sec. 3 t-T26N-R9E (aver rode6+9)
(121) Toh Rwer south fork from west boundary of See Class AA3 I-T26N-RgE (aver rode 6 9) to headwaters Spe-
cial condition • no wa,;te discharge will be permit-ted
(122) Touchet Rt'. er. ooah fork from Da3,ton water retake Class AA•,meture (mer mile 3 0) to headwaters
(123) ToutleRtvernonhfork fromGreenRr+ertohead- ClassAAwaters
(124) Toutle River south fork Class AA
(125) Tucannon River from Umatdla NaHonal Forest Clas_ AAboundary (n',er mile 38 1) 1o headwaters
(126) Twlsp Rwer Class AA
(127) Umon Rwerand mbutarzes from Bremeaon Water- Cla_s AA
works Dam (river rode 6 9) to headwaters Specialcondition - no waste dtseha_e will be pernanted.
(I 28) Walla Walla River from mouth to Lov, den (Dry Class BCreek at rr, er rode 27 2)
(129) Walla Walla Rp,'er from Lowden (Dry Creek at Class Aaver mile 27 2) to Oregon border (nver mile 40)Special condmon - temperature shall not esceed
20 0*C due to human act_'ntes When natural con-
dhtons exceed 20 0*C. no temperature increasewill
be allowed which wdl ratsa the receiving water
temperature by greater than 0 30C nor shall such
temperature increases+ at any time exceedt=34/(T+9)
030) Wanatchee Rwer from Wenalchee National Forest Class AA
boundary (rwer mile 27 1) to headwaters
(131) WMte Rr.er (Pierce-King countms) from Mud Class AAMountain Dam (aver rode 27 I) to headwaters
(I 32) White Rwer (Chelan Coumy) Class AA
(133) Wildcat Creek Class A
(134) Wtllap_ River upstream of a llne be_nng 70* true Class A
through Madboat Slough light (aver rode 1_8)
(135) Wlshkah Rr, er from mouth to aver mile 6 (SW 114 Class BSW 1/4 NE I/4 See, 21-TIgN-R9W)
(136) WlshkahRwer frornrwermde6(SW 1/4SW 1/4 Class A
NE 1/4 Sec 21-TI 8N-R9W) IOwest fork (averrode 17 7)
(I 37) Wishkah River from west fork of Wishkah R+ver Class AA
(m'er mile 17.7) to south boundary of See-. 33-T21N-R8W (river mile 32 0).
[Ch- 173-201A WAC---p. 161 01115/97)
WaterQualityStandards---SurfaceWaters 173-201A-160
(138) Wish.kah Rwer a.qd trlb_ar tes frvm south hounc_'T CIa._. AAof See 33-T21N-R8W (river mile 32.0) to headwa-
ters, Spectal condltmn- no waste d,scharge will bepermdted
(139) WynoocheeP_verfrommouthloOlymptcNat*noal Class A
Forest boundary (river retie 45 9)
(140) Wynoochee Rwer from Olympic Nattunal Forest ClaSs AAboundary (nver retie 45.9) to headwaters
(141) YaktmaRlvcrfrommouthtoCleElumRwer(rlver Class A
mile I g5 6) Sl:¢Ctalconddton - temperature shallnot exceed 2L O°C dun to human acttvtttes. When
natural condulons exceed 21 0*C. no temperatureincrease wtll be allowed whteh wdl raise the recew-
ing water temperature by greater than 0 3"C. nor
shall such temperature increases, at any tune.exceed t=341(T+9)
(142) Yaktma R r, er from Cl¢ Elum Rr¢er (nver mile ClaSs AA185 6) to beadwate_
lStatotory Authorny Chapter 90 48 RCW and 40 CFR 131 97-23-064(OMerg_lg).§ 173-201A-130.filad I 1/18/97 effective 12/19/97 Statutory
Authority Chapter 90 43 RCW 92-24-037 (Order 92-29). § 173-201 A- 130filed I ID2/92. effecttve 12/26/92 }
WAC 173-201A-140 Specific classifications--Marine
water. Specific marine surface waters of the state of Wash-
mgton are classtfied as follows.
(I) Budd Inlet south of latitude 47*04 N (south ofPrtest Point Park) Class B
(2) Coastal waters Pactfic Ocean from IIv, aco to
Cape Ftattcry Class AA
(3) Commencement Bay south and east of a line
beanng 258 ° tree from "B_ n's Po_at" and north
and west of line hoarmg 225* te.e through the
Hylebo_ waterv,-ay hght. Class A
(4) Commencement Bay tuner, south and east of a
hne bearing 225* true through Hylebos water'v, ayhght except the cay v,aterway south and earn ofsouth i|th Strut. Class B
(5) Commencement Bay. czty waterway southandeast of south I I th Street Class C
(6) Drab'ton Harbor. south of e.ntraune Class A
(7) Dyes and Sirmlatr Inlets west of lungrtude122"3TW. Class A
(g) Elhott Bay east of a hrt¢ between Pter 91 ar_Duwamlsh head. Class A
(9) Everen Harbor. tuner, nonhoast of a hne beating
121* true from approxtmately 47°59'5"N and
122*13'44"W(southwest cofnerofthe pter) Cl_s B
(10) Grays Harbor west of Iongunde 123"59"A.: Class A
(1t) Grays Harbo¢ ezst of lungnude 123'59'W to lon-
gitude 123"45"45"W (Cosmopolts Chehalts
Rt,.er. nver mile 3. I) Special unnditton -dts-sol',ad oxygen ,,hall exceed 5 0 mg/L Cla_ B
(12) Gnemes Channel Paddla. Sarmsh and Belhng-
ham Bays east of Iongttude 122*39%V and north
of Latitude 48*2T20"N. Clas,; A
(13) Hood Canal Class AA
(14) Mukdteo and all North Puget Sound west of Ion-
gttude 122"39' W (Wh_dbey. Ftdalgo Guemes
and Lummt islands and Slate Htghway 20 Badge
at Decepttno Pa_s). except as otherwise noted Class AA
(I 5) Oakland Bay west of lungltude 123°05'W (innerSbelton harbor) Class B
(11118/97)
(I 6) PUr_ Angeles south mad ",_e_ of a hne beantxg
152" true from buoy ' 2" at the ttp of Edtz Hook. Class A
(17) Port Gamble south of latitude 47"51'20"N Class A
( 1g) Port Townsend west of a hoe between Point Hud-son and Kala Poml Class A
(I 9) Possession Sound south of latitude 47"57'N Class AA
(20) Possesston Sound. Port Susan Sara.t oga Paasage,
and Skagit Bay east of Whtdbey Island and StateHighway 20 Badge at Deceptmn Pass between
latnnde 47"5TN (Muktlteo) and latitude
48*2T20"N (Stmilk Bay) except as otherwtsenoted ClaSs A
(21 ) Puget Sound through Admtralty Inlet and South
Puget Sound south and west to Iongnnde
122"52'30"W (Bnsco Point) and longitude
122"51 'W (northern tip of Hanstene Island) Class AA
(22) Sequtm Bay southward of entrance Class AA
(23) South Puget Sound west of Iongttude
122"52'30"W (Brlsco Point) and longitude
122"51'W (northet'n tip of Hartstene Island.except asotherwtse noted) Class A
(24) Strait of Juan de Fuca Class AA
(25) Torten Inlet and Lmle Skookum Inlet west of
Iongttude 122*56 32" (west sMe of Steamboat
Island) Class AA
(26) Wdlapa Bay seav, ard of a hne hoarmg 70 ° true
through Mallbnat Slough light (Wdlapa Riverriver mtle 1.8) Class A
lSratutor_ Authorny C'hapler 9048 RCW and 40 CFR 131 97-23-064(Order 94-19) § 173-201 A- 140 filed l 1/18/97. effectwe 12/19/97 Statutory
Authority Chapter 90 4g RCW 92.24-037 (Order 92-29) § 173-201A-140filed 11/25/92. effective I_d26/92 ]
WAC 173-201A-150 Achievement considerations. To
fully achieve and maintain the foregoing water quality m the
state of Washington, tt ts the intent of the department to apply
the vanous tmplementatton and enforcement authonttes at its
disposal, including parhcipatton m the programs of the fed-
eral Clean Water Act (33 U S C t 251 et seq ) as appropriate.
It is also the intent that cogmzance will be taken of the need
for participation m cooperative programs with other state
agenctes and private groups wtth respect to the management
of related problems The department's planned program for
water pollutton control wtll be defined and revised annually
m accordance w_th sectton 106 ofsatd federal act Further, tt
shall be required that all activittes whtch thscharge wastes
into waters within the state, or otherwise adversely affect the
quahty of sam waters, be in compliance with the waste treat-
ment and dtscharge provts_ons of state or federal law
[Statutory Authonty Chapter 90.48 RCW 92-24-037 (Order 92-29), § 173-201A-150 filed 11/25/92 effectwe 12/26/92 ]
WAC 173-201A-160 Implementation. (1) Discharges
from municipal, commercial, and industrial operations.
The primary means to be used for controlling munictpal,
commercial, and industrial waste dtscharges shall be through
the issuance of waste dtsposal permits, as provided for in
RCW 90 48.160, 90 48.162, and 90 48 260
(2) Miscellaneous waste discharge or water quality
effect sources. The dtrector shall, through the issuance of
regulatory permtts, dtrecttves, and orders, as are appropriate,
[Ch. 173-201A WAC--p. 171
173-201A-170 Water Quality Standards--Surface Waters
control miscellaneous waste discharges and water quality
effect sources not covered by subsection ( 1) of this section.
(3) Nonpoint source and storm water pollution.
(a) Activities wMch generate nonpoint source pollution
shall be conducted so as to comply with the water quality
standards. The pnmary means to be used for requinng com-
pliance with the standards shall be through best management
practices required m waste discharge permits, rules, orders,
and directives issued by the department for actJvtUes which
generate nonpoint source pollution
(b) Best management practices shall be applied so that
when all appropriate combinations of individual best man-
agement practices are utilized, violation of water quality cri-
teria shall be prevented. If a discharger is applying all best
management practices appropriate or required by the depart-
ment and a violation of water quality criteria occurs, the dis-
charger shall modify existing pracuces or apply further water
pollution control measures, selected or approved by the
departmenL to achieve compliance with water quality crite-
ria Best management practices established in permits,
orders, rules, or directives of the department shall be
reviewed and modified, as appmpnate, so as to achieve com-
phance with water quality criteria.
(c) Activities which contribute to nonpomt source pollu-
tion shall be conducted utihzmg best management practices
to prevent violation of water quality critena. When applicable
best management practices are not being implemented, thedepartment may conclude individual activities are causing
pollution in violation of RC'a,V 90.48.080. In these situations,
the department may pursue orders, directives, permits, or
civil or criminal sancUons to gain comphance with the stan-dards.
(d) Acttvmes which cause pollution of storm water shall
be conducted so as to comply with the water quality stan-
dams. The primary means to be used for requiring compli-ance with the standards shall be through best management
practices required in waste discharge permits, rules, orders,
and directives issued by the department for activities which
generate storm water pollution. The consideration and con-
trol procedures in (h) and (c) of this subsection apply to the
control of pollutants in storm water
(4) Allowance for compliance schedules.
(a) Permits, orders, and directives of the department for
existing discharges may include a schedule for achieving
compliance with water quahty criteria contained in this chap-
ter. Such schedules of compliance shall be developed toensure final ¢omphance with all water quality-based effluent
limits in the shortest practicable time. Decisions regarding
whether to issue schedules of compliance will be made on a
ease-by-case basis by the department. Schedules of compli-
ance may not be issued for new discharges. Schedules of
compliance may be issued to allow for: (i) construction of
necessary treatment capability; (it) implementation of neces-
sary best management pracuces; (ill) implementation of addi-
tional storm water best management practices for discharges
determined not to meet water quality criteria following
implementation of an initial set of best management prac-rices; (iv) completmn of necessary water quality studies; or
(v) resolution of a pending water quality standards' issue
through rule-making action.
ICIL 173-201A WAC--p 18]
(b) For the period of time during which compliance with
water quality criteria is deferred, interim effluent hmitations
shall be formally established, based on the best professional
judgment of the department. Interim effluent limitations may
be numeric or nonnumertc (e.g., construction of necessary
facihttes by a specified date as contained in an ecology order
or permit).
(c) Prior to estabhshmg a schedule of compliance, the
department shall require the discharger to evaluate the possi-
bthty of achieving water qualtty criteria vta nonconstruction
changes (e g., facility operation, pollution prevenuon).
Schedules of comphance may in no case exceed ten years,
and shall generally not exceed the term of any permit
[Statutory Authority Chapter 90 48 RCW and 40 CFR 131 97-23-064
(Order 94-191. § 173-201 A- 160. filed I I/18/97, effect we 12/19/97 Statutory
Authority Chapter9048RCW 92-24-037(Order92-29),§ 173-201A-160
filed t 1/25192 effecuve 12/'26/92 ]
WAC 173-201A-170 Surveillance. A continuing sur-
veillance program, to ascertain whether the regulations,
waste disposal permits, orders, and directives promulgatedand/or issued by the department are being comphed with,
will be conducted by the department staff as follows:
(I) Inspecting treatment and control facdities
(2) Monitoring and reporting waste discharge character-istics
(3) Monitoring receiving water quality
[StatutoryAuthorlty Chapterg048RCW 92-24-037(Order92-29) § 173-
201A-170 flied ll/25/92,¢ffectwe 12/26/92 I
WAC 173-201A-180 Enforcement. To msure that the
provisions of chapter 90 48 RCW, the standards for water
quality promulgated hereto, the terms of waste disposal per-
mits, and other orders and directives of the department are
fully complied with, the following enforcement tools will be
relied upon by the departmenL m cooperation with the attor-
ney general as it deems appropriate:
(I) Issuance of notices of violation and regulatory orders
as provided for in RCW 9048.120.
(2) Initiation of actions requesting injunctive or other
appropnate rehefin the various courts of the state as providedfor m RCW 90.48 037.
(3) Levying of civil penalties as provided for in RCW90.48 144
(4) Initiation of a criminal proceeding by the appropriatecounty prosecutor as provided for in RCW 90.48 140.
(5) Issuance of regulatory orders or directwes as pro-vided for m RCW 90.48.240
[StaiuloryAuthonty Chapter 90 48 RCW 92-24-037(Order92-29),§ 173-
201A-180 filed 11/25/92. effective 12/26/92 i
(11/18/97)