Washington State
House of Representatives
Office of Program Research
BILL
ANALYSIS
Environment & Energy Committee
SSB 5381
Brief Description: Addressing fish passage project permit streamlining.
Sponsors: Senate Committee on Transportation (originally sponsored by Senators Hobbs, Fortunato, King and Warnick).
Brief Summary of Substitute Bill
  • Provides that fish barrier correction portions of broader Washington State Department of Transportation (WSDOT) projects may receive a streamlined project review for hydraulic project approvals.
  • Clarifies that local governments are allowed to charge fees or impose requirements, or both, for fish habitat enhancement projects in order to comply with National Flood Insurance Program requirements.
  • Exempts public projects whose primary purpose is fish passage improvement or fish barrier removal from the substantial development permit requirements of the Shoreline Management Act.
  • Requires the WSDOT to work with the Department of Ecology, Department of Fish and Wildlife, and federal environmental permitting agencies to streamline the federal permitting process for fish passage barrier correction projects.
Hearing Date: 3/19/21
Staff: Robert Hatfield (786-7117).
Background:

Hydraulic Project Approval for Fish Habitat Enhancement Projects. 


A hydraulic project approval (HPA), issued by the Department of Fish and Wildlife (WDFW), is required for any project that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state.  If a project meets certain criteria qualifying it as a fish habitat enhancement project (FHEP) and is approved by certain entities, it is eligible for a streamlined review and approval process.  Fish passage barrier removal projects are classified as FHEPs.  Local governments have a 15-day comment period on applications, and WDFW must make a decision on the permit within 45 days.  Local governments may not charge fees or require other permits for FHEPs that qualify for and receive streamlined HPA review.
 
Floodplain Management. 


The National Flood Insurance Program (NFIP), managed by the Federal Emergency Management Agency, makes federally backed flood insurance available in those states and communities that agree to adopt and enforce floodplain management ordinances to reduce future flood damage.  In Washington, the Department of Ecology (Ecology) is the lead state agency for floodplain management, while local governments are responsible for implementing local floodplain management plans as well as the NFIP.
 
Shoreline Management Act Permits. 


The Shoreline Management Act (SMA) of 1971 governs shoreline usage of the state.  The SMA requires that most developments near state shorelines be consistent with shoreline master programs developed by local governments.  Certain projects require a substantial development permit reviewed by the local government and filed with Ecology.  Projects that are approved under the FHEP process are exempt from the requirement to obtain a substantial development permit under the SMA.
 
Federal Permitting. 


Depending on site location and conditions, Washington State Department of Transportation (WSDOT) fish passage barrier removal projects commonly need federal permits under the Clean Water Act, Rivers and Harbor Act, Endangered Species Act, and National Historic Preservation Act.  Occasionally, federal permits are also needed through the Migratory Bird Treaty Act, Gold and Bald Eagle Protection Act, and Marine Mammal Protection Act.  The WSDOT has statutory guidance to implement a multiagency permit program and to establish programmatic agreements and permits with both state and federal agencies, as appropriate.
Summary of Substitute Bill:

The fish passage barrier correction portion of transportation projects are added to the class of projects that are eligible for expedited hydraulic project approval permitting as fish habitat enhancement projects (FHEP).


The Washington State Department of Transportation (WSDOT) is required, when applying for approval for a FHEP, to use the Department of Fish and Wildlife's (WDFW) online permit application system or a Joint Aquatic Resource Permit Application form.


For WSDOT fish passage barrier correction projects approved under the FHEP process, the WDFW must, within 30 days, either issue a permit, with or without conditions, deny approval, or make a determination that the FHEP review and approval process is not appropriate for the proposed project.


Local governments are authorized to impose requirements, or charge fees, or both, in connection with a project approved under the FHEP process, only as necessary in order to comply with any applicable prerequisites for participation in the National Flood Insurance Act.


Public projects for the primary purpose of fish passage improvement or fish barrier removal are exempt from the substantial development permit requirements of the Shoreline Management Act.


The WSDOT must implement a multiagency effort, in coordination with the Department of Ecology and the WDFW, and work with the relevant federal environmental permitting agencies to streamline the acquisition of commonly needed environmental permits and approvals for WSDOT fish passage barrier correction projects.  Expected results include developing programmatic permit options that simplify the application process, reduce paperwork, and reduce the amount of time and cost it takes to acquire these permits and approvals.
Appropriation: None.
Fiscal Note: Available.
Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.