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State of Washington Alternative Mitigation Policy Guidance For Aquatic Permitting Requirements from the Departments of Ecology and Fish and Wildlife

Category: Habitat - Guidelines

Date Published: February 10, 2000

Number of Pages: 17

INTRODUCTION:

The following is adopted as the State of Washington's Interagency Policy Guidance for evaluating aquatic mitigation alternatives. The intent of this guidance is to represent consensus on mitigation policy among the disciplines and the agencies responsible for evaluating, approving, implementing and enforcing aquatic resource mitigation.

Because stocks of salmon are genetically different, and because these stocks have associations with particular stream reaches, there will be limitations on uses of alternative mitigation in such cases. Nothing in the guidance should be assumed to direct the use of alternative mitigation when it would result in loss of at-risk fish stocks, prevent salmon recovery, or create policy of the state that would be in conflict with the Federal Endangered Species Act, Federal Clean Water Act, Native American Treaty Rights to fish habitat protection, or Department of Fish and Wildlife – Treaty Tribes Wild Salmonid policy. Alternative mitigation tools will be used only where they are the best choices for mitigating unavoidable impacts and are agreed to by the participating parties. However, where federal or local policies are more stringent than those identified in the state interagency policy guidance, the more stringent policies will have precedence for state-issued permits.

This policy guidance will assist the Departments of Ecology or Fish and Wildlife in issuing permits or reviewing actions under section 401 of the Clean Water Act, the Shoreline Management Act or Title 75 of the Hydraulics Code. The policy guidance was developed to be consistent with WDFW's mitigation policy (M5002 – Requiring or Recommending Mitigation). While this guidance represents consensus between agencies for a general approach to mitigation, it is not intended to supersede any existing authority or responsibility for regulatory and resource decisions of permitting agencies as they relate to site-specific conditions. Because this policy guidance is intended to address many media, the authors seek to use a standardized language, which departs from traditional syntax adopted within these disciplines. For example, water quality managers use the term “beneficial uses” where wetlands or fish and wildlife managers use “functions and values”. To avoid confusion, neutral terms such as “functions” will be substituted.

Background - Increasingly, governmental programs designed to protect, enhance, and restore natural resources are expected to coordinate policy and implementation. Watersheds function as ecological units. Actions in one part of a watershed influence the remaining parts, potentially affecting its ability to function as a self-sustaining ecosystem. Regulators and applicants need to look at the watershed ecosystem as a whole when considering impacts and the use of preservation, mitigation banking, and off-site or out-of-kind mitigation as tools for salmon and watershed recovery. Despite the agreed upon benefits of a watershed-based approach, guidance has not been in place to assist regulators and developers with the selection and evaluation of mitigation proposals for alternative watershed-based approaches.

In 1998 the State Legislature passed the Salmon Recovery Act (RCW 75.46/ESHB 2496) in response to the state's need for a coordinated approach to respond to listings of salmon and steelhead runs as threatened or endangered under the federal endangered species act (16 U.S.C. Sec. 1531 et seq.). The Legislature also recognized the need to coordinate mitigation activities, where appropriate, with the state's proposed salmon and watershed recovery programs. The Washington State Departments of Ecology, Fish and Wildlife, and Transportation, along with interested Tribes were required by this legislation to develop policy guidance to evaluate mitigation alternatives and opportunities. In addition, the Department of Natural Resources (DNR), and the Department of Community, Trade and Economic Development (CTED) have aided in the effort.

Mitigation Policy Guidance - RCW 75.46 states that the guidance shall create procedures that provide for alternative mitigation which have a low risk to the environment, yet have a high net environmental, social, and economic benefit compared to status-quo options. The guidance shall be designed to enable committees established under RCW 75.46.060 to develop and implement habitat project lists that maximize environmental benefits from project mitigation while reducing project design and permitting costs. The committees must also ensure that federal, state, treaty-right, and local environmental laws and ordinances are met. Benefits of agreed-upon state mitigation policy guidance include improved consistency with existing state and federal policies, improved predictability for better project planning, and increased flexibility for applicants and regulatory agencies to address watershed needs and limiting factors in the implementation of watershed planning goals and salmon recovery efforts. The guidance sets forth a framework for decisions to be made, and identifies appropriate mitigation strategies that are acceptable to the agencies.

The 1996 State Legislature passed the Aquatic Resources Mitigation Act (RCW 90.74) which stipulates that it is the policy of the state to authorize innovative mitigation measures by requiring state regulatory agencies to consider mitigation proposals for infrastructure projects that are timed, designed, and located in a manner to provide equal or better biological functions and values compared to traditional on-site, in-kind mitigation proposals. For infrastructure projects, the agencies may not limit the scope of options to be considered in a mitigation plan to traditional on-site, in-kind mitigation proposals. When making regulatory decisions, the agencies shall consider whether the mitigation plan provides equal or better functions and values, compared to the existing conditions, for the target resources or species identified in the mitigation plan and agreed to by the resource agencies. The factors the agencies must consider in making this decision are identified in the Hydraulic Code, the State Water Pollution Control Act, and the Aquatic Resources Mitigation Act. The mitigation policy guidance developed under the Salmon Recovery Act is required to be consistent with those criteria established under the Aquatic Resources Mitigation Act. The Departments of Ecology and Fish and Wildlife are not required to grant approval to a mitigation plan that the Departments find does not provide equal or better biological functions and values within the watershed or bay.

The 1998 Washington State Legislature passed legislation creating Chapter 90.84 RCW, Wetland Mitigation Banking, as one element of compensatory mitigation. It directed consistency with Federal Guidance on Mitigation Banking. The statute used the definition for mitigation listed in federal guidance (sequentially avoiding impacts, minimizing impacts, and compensating for remaining unavoidable impacts).

Agency and Tribal Authority - The Washington Departments of Fish and Wildlife (WDFW) and Ecology (WDOE) have the regulatory authority to require or recommend mitigation of impacts to aquatic resources for the State of Washington. Authority for state agencies to recommend or require mitigation is granted by the following:

  • Federal Coastal Zone Management Act
  • Federal Clean Water Act
  • Federal Endangered Species Act
  • Federal Fish and Wildlife Coordination Act
  • National Environmental Policy Act
  • State Water Pollution Control Act (RCW 90.48)
  • Shoreline Management Act (RCW 90.58)
  • Hydraulic Code (RCW 75.20)
  • Aquatic Resources Mitigation Act (RCW 90.74)
  • Wetlands Mitigation Banking Law (RCW 90.84)
  • State Environmental Policy Act (RCW 43.21C)
  • Growth Management Act [RCW 36.70(A)]
  • International Treaties on Migratory Birds

Note: Not all of these authorities rest with each agency.

Federally recognized Indian Tribes of the State of Washington possess treaty rights intended to ensure that rights retained under treaty agreements include provisions to hunt, fish, and gather within their usual and accustomed grounds. In addition, the Orrick Decision in Federal Court determined that the Tribes are guaranteed the right to fish habitat protection. When applying this guidance for mitigation site selection, any affected tribe must be consulted to ensure that no net loss of the tribal Usual and Accustomed Area will occur. Agencies and applicants need to be in contact with tribes, be cognizant of which tribes co-manage what areas, and work with the tribes on any mitigation decisions that affect the tribe. Each respective tribe adversely affected by a prospective permit or mitigation decision should be contacted directly and involved from the start. It is important to note that the Northwest Indian Fisheries Commission (NWIFC) does not act in place of individual tribes when treaty rights are concerned, and notice to the NWIFC does not constitute notice to the separate tribes.

The Washington State Department of Transportation (WSDOT) is responsible for building, operating, and maintaining the state's transportation system in an environmentally responsible manner. As such, WSDOT has a vested interest in policies affecting the management of the state's natural resources both as a permit applicant and as an agency of government. WSDOT is committed to implementing this interagency mitigation policy guidance to assure project compliance, and to ensure that WSDOT's mitigation expenditures are directed towards those sites offering the greatest ecological benefit.

Because of it's role in providing growth management technical assistance to local governments, the Department of Community, Trade, and Economic Development (CTED) participated in the development of this policy guidance along with the required participants identified in RCW 75.46 (e.g., WDFW, Ecology, Tribes, and WSDOT). CTED is responsible for developing Best Available Science guidelines for local governments to use in the designation and protection of critical areas. The Best Available Science guidelines will serve to support the interagency mitigation policy guidance. The interagency mitigation policy guidance will provide a framework for local governments to consider as they evaluate and update mitigation sections within their Critical Area Ordinances. Use of the guidance by local governments is also intended to facilitate consistency among local ordinances in the same watershed and between the local ordinances and the state's approach to mitigation.