(1) The department will identify and quantify the existing legal demands of water rights on the source of supply and those waters to which it is tributary and which the department determines may be affected by the proposed appropriation. 

(a) For groundwater appropriations, this shall include identification and quantification of existing legal demands of water rights for any surface water source that the department determines will be depleted as a result of the groundwater appropriation.

(2)  The department will compare the physical water supply at the proposed point of diversion and the legal demands of water rights within the area of potential impact to determine if water is legally available for the proposed permit.  For groundwater permits, the department will compare the physical water supply and existing legal demands for impacted groundwater sources and surface water sources it determines will be depleted pursuant to (1)(a), to determine if water is legally available.

(a)  The department may consider an applicant's mitigation or aquifer recharge plan as evidence that water is legally available.

(b)  The department may consider additional water right information as evidence that water is legally available.