Why Does The Department of Fish and Wildlife Care If I Work Near The Water?

All fish and shellfish have special habitat requirements related to water quality and quantity (including temperature) and to the physical features of the stream or body of water in which they live. For example, salmon and steelhead spawn and live for a time in a stream before going to the ocean. They require an ample supply of clean, cool, well-oxygenated water. Adults need clean gravel in which to spawn and juvenile fish require in-stream cover such as tree parts, boulders, or over-hanging banks to hide from predators. Vegetated stream banks shade the water from the warming effects of the sun. Insects drop off overhanging vegetation and provide food. When juvenile salmon or steelhead enter saltwater, their habitat requirements change. During this critical transition period, they must have shallow, near-shore waters where they can migrate, school, feed, and seek protection from larger fish.

Each species of fish and shellfish has similar, yet unique requirements. They have become adapted to and require these natural conditions as a result of the 10,000 years of evolution since the last ice age. The degradation of any one of the elements of their required habitat results in reduced numbers of fish and shellfish.

Construction activity in or near the water has the potential to kill fish or shellfish directly. More importantly, this activity can also alter the habitat that fish and shellfish require. Direct damage or loss of habitat results in direct loss of fish and shellfish production. Direct killing of fish or shellfish is usually a one-time loss. Damaged habitat, however, can continue to cause lost production of fish and shellfish for as long as the habitat remains altered. Major construction projects individually have a large potential for damage, but more habitat is lost from the cumulative effects of many smaller projects, each with a minimal level of impact.

What Law Gives The Department of Fish and Wildlife
The Authority to Regulate Work That Impacts Fish Life?

The state Legislature gave the Department of Fish and Wildlife the responsibility of preserving, protecting, and perpetuating all fish and shellfish resources of the state. To assist in achieving that goal, the state Legislature in 1949 passed a state law now known as the "Hydraulic Code" (Chapter 77.55 RCW). Although the law has been amended occasionally since it was originally enacted, the basic authority has been retained.

What Does The Law Say?

The law requires that any person, organization, or government agency wishing to conduct any construction activity that will use, divert, obstruct, or change the bed or flow of state waters must do so under the terms of a permit (called the Hydraulic Project Approval-HPA) issued by the Washington State Department of Fish and Wildlife. State waters include all marine waters and fresh waters of the state, except those watercourses that are entirely artificial, such as irrigation ditches, canals and storm water run-off devices.

What Is The Purpose Of The Law?

Damage or loss of fish and shellfish habitat results in direct loss of fish and shellfish production. The enactment of Chapter 77.55 RCW was recognition by the state Legislature that virtually any construction that affects the bed or flow of the waters of the state has the potential to cause habitat damage. The law's purpose is to see that needed construction is done in a manner to prevent damage to the state's fish, shellfish, and their habitat. By applying for and following the provisions of the HPA issued under Chapter 77.55 RCW, most construction activities that affect the bed or flow of state waters can be allowed with little or no adverse impact on fish or shellfish.

What Types Of Activities Are Subject To The Law?

The major types of activities in freshwater requiring an HPA include, but are not limited to: stream bank protection; construction OR REPAIR of bridges, piers, and docks; pile driving; channel change or realignment; conduit (pipeline) crossing; culvert installation; dredging; gravel removal; pond construction; placement of outfall structures; log, log jam, or debris removal; installation or maintenance of water diversions; and mineral prospecting.

Major saltwater activities requiring an HPA include, but are not limited to: construction of bulkheads, fills, boat launches, piers, dry docks, artificial reefs, dock floats, and marinas; placement of utility lines; pile driving; and dredging.

It is important to emphasize that the above are only examples of major types of activities requiring an HPA and that any construction activity that uses, diverts, changes, or obstructs the bed or flow of state waters requires an HPA.

What Other Information Is Available?

A set of agency rules (Chapter 220-110 WAC) has been adopted by the Department of Fish and Wildlife to guide administration of Chapter 77.55 RCW. Additionally, "Aquatic Plants and Fish" and "Gold and Fish" pamphlets contain rules for aquatic plant control and removal, and mineral prospecting activities, respectively. Besides serving as the permit for the activities that comply with them, these pamphlets contain helpful technical assistance information. Copies can be acquired from any Department of Fish and Wildlife office. Department regional offices may also have a list of local contacts to assist in determining what other permits may be required. The department’s Habitat Program website contains links to numerous technical assistance documents that may help you plan your project. WDFW is developing two Habitat Conservation Plans (HCP) to ensure species protection and compliance with the Endangered Species Act. One HCP will cover activities conducted under the Hydraulic Project Approval authority and the other will cover activities occurring on WDFW's Wildlife Areas.

How Do I Apply For An HPA?

The form to apply for an HPA is called a Joint Aquatic Resource Permit Application (JARPA). JARPA is an application form that consolidates seven permit application forms for federal, state, and local permits. JARPA is used to apply for an HPA and also for Water Quality Certifications or Modifications from the Department of Ecology, Aquatic Resource Use Authorizations from the Department of Natural Resources, Army Corps of Engineers permits, and Shoreline Management Act Permits from participating local city or county agencies. Currently, not all local government agencies use JARPA. You should contact your local planning office to determine if they accept JARPA documents. JARPA forms are available from any Department of Fish and Wildlife office, as well as from any Department of Ecology, Army Corps of Engineers, or participating local government offices. Stop in at the nearest office and pick up an application, call or write and one will be mailed to you, or go online at http://www.ecy.wa.gov/biblio/ecy07015.html. Copies of the JARPA form must be submitted to all participating agencies that require a permit for your project, including the Department of Fish and Wildlife. There is no charge for the HPA.

What Constitutes Complete Plans and Specifications When Applying for an HPA

Do I Need to Include Anything with my Application?

As contained within JARPA; must include general plans for project, complete plans and specifications for the proposed construction or work within the mean higher high water line in salt water or within the ordinary high water line in fresh water, and complete plans and specifications for the proper protection of fish life. What Constitutes Complete Plans and Specifications When Applying for an HPA Applications for streamlined processing of fish habitat enhancement projects must additionally include the application form for these projects that is attached to the JARPA.

Is the Decision on my Permit Dependent on Anything Besides the Information in my Application?

State Environmental Policy Act (SEPA) compliance must be completed prior to review of your application and issuance of the HPA by WDFW. SEPA compliance is not required for an expedited or an emergency HPA.

How Do I Know What Other Permits May Be Required?

The Office of Regulatory Assistance provides statewide environmental permit information. By calling 1-800-917-0043, or by going online at http://www.ora.wa.gov/ you can find out which environmental permits are required for your proposed activity. The Office of Regulatory Assistance can also assist in determining if your local government agency will accept the JARPA form or if another application may be required. It is recommended that you consult with the Office of Regulatory Assistance or local government agencies requiring permits early in the planning process to ensure that all necessary permits, not just the HPA, are obtained prior to beginning work.

If I Have a Forest Practices Application, Do I Still Need to Apply for an HPA?

No. The Forest Practices Application serves as the HPA application as well. But just having a valid Forest Practices Application does not mean that “any work that affects … the bed or flow” is necessarily approved under an HPA. Contact the local Department of Natural Resources Forester and/or Department of Fish and Wildlife Biologist (if known) for assistance.

How Are HPA Applications Processed?

HPA applications are assigned to a Department of Fish and Wildlife Area Habitat Biologist. In most cases, the representative will visit the project site and will try to meet with you to point out fish habitat needs and how the project may affect that habitat. The representative will work with you to help achieve your objective while protecting fish, shellfish, and their habitat.

What Will An HPA Contain?

If the project as proposed will adversely affect fish habitat, it may be approved with certain conditions attached, such as timing and construction methods, to prevent damage. If the project cannot be accomplished without significant adverse impacts on fish, shellfish, or their habitat, it may be denied. Of the approximately 6,000 applications received per year, less than one percent are denied.

How Do I Determine Which Biologist Will Process My Application?

You can find the name and contact information of the Area Habitat Biologist that likely will process your application by referring to the online list at http://wdfw.wa.gov/hab/ahb or by calling the Olympia Habitat Program office at (360) 902-2534.

If the project as proposed will adversely affect fish habitat, it may be approved with certain conditions attached, such as timing and construction methods, to prevent damage. If the project cannot be accomplished without significant adverse impacts on fish, shellfish, or their habitat, it may be denied. Of the approximately 6,000 applications received per year, less than one percent are denied.

How Long Does It Take To Get An HPA?

While the Hydraulic Code allows 45 days to act on your application, most are processed within 30 days or less of receipt of a complete application and compliance with the State Environmental Policy Act (SEPA Chapter 43.12C RCW). A complete application consists of (1) general plans and specifications for the project, (2) complete plans and specifications for work within the ordinary high water line, and (3) complete plans and specifications for the proper protection of fish life. An Area Habitat Biologist can assist you in determining the location of the ordinary high water line, and the necessary steps to protect fish life from the impacts of your project.

What If I Have An Emergency?

RCW 77.55.021 (8) provides for emergency situations when there exists an immediate threat to property or life. In such cases, immediate verbal approval can be obtained for work necessary to alleviate the emergency. A "hotline" telephone number is available for emergency calls during non-working hours. That number is (360) 902-2537. During normal hours, contact your nearest Fish and Wildlife office.

What if I Have an Emergency and Can't Get in Touch With a Biologist? Can I Do the Work Anyway?

No. RCW 77.55.021 (1) requires you to get a permit from Washington Department of Fish and Wildlife before doing any work on a hydraulic project. In the event of an emergency during working hours contact your nearest Fish and Wildlife office. During non-working hours call the “hotline” telephone number at (360) 902-2537

If an Emergency Declaration is Made, Do I Still Need an HPA from WDFW?

Yes. RCW 77.55.021 (8) states: “The department, through its authorized representatives, shall issue immediately, upon request, oral approval for a stream crossing, or work to remove any obstructions, repair existing structures, restore streambanks, protect fish life, or protect property threatened by the stream or a change in the stream flow without the necessity of obtaining a written permit prior to commencing work. Conditions of the emergency oral permit must be established by the department and reduced to writing within thirty days and complied with as provided for in this chapter.”

What is the Difference Between an Emergency and an Expedited HPA?

An emergency HPA can be issued for projects meeting the definition of emergency in RCW 77.55.011, which states: “emergency means an immediate threat to life, the public, property, or of environmental degradation.” Emergency HPAs can be issued verbally immediately upon request, with written follow-up, and an emergency can be declared only by the county legislative authority or by WDFW. An expedited HPA is one issued for projects where normal processing would result in significant hardship for the applicant or unacceptable damage to the environment and where it meets the definition of imminent danger in RCW 77.55.011, which states: “imminent danger means a threat by weather, water flow, or other natural conditions that is likely to occur within sixty days of a request for a permit application.” Expedited HPAs must be issued in writing within 15 days of the request for a permit. Neither emergency nor expedited projects are required to comply with the requirements of SEPA.

What Will Happen if I Do Work Without Getting a Permit from WDFW?

You will be subject to enforcement and prosecution. RCW 77.55.291 states, “the department may levy civil penalties of up to one hundred dollars per day for violation of any provisions of RCW 77.55.021.” Additionally, under RCW 9A.20.010 (2) you would be subject to penalties for a gross misdemeanor "(a) Any crime punishable by a fine of not more than one thousand dollars, or by imprisonment in a county jail for not more than ninety days, or by both such fine and imprisonment is a misdemeanor. Whenever the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the committing of such act shall be a misdemeanor. (b) All crimes other than felonies and misdemeanors are gross misdemeanors."

Is the Streamlined Processing for Fish Habitat Enhancement Projects the Same as an Expedited HPA?

No. Fish enhancement projects approved under RCW 77.55.181 differ from emergency or expedited projects. Projects applied for under this RCW must meet specific criteria to show that they are appropriate fish enhancement projects. With the exception that approved projects under this RCW are exempted from the requirements of SEPA and local permitting, WDFW processes applications for fish enhancement projects in the usual manner – processing w/in 45 days, and project may or may not be approved upon review of a complete application.