WSR 10-13-093

EMERGENCY RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Order 10-147 -- Filed June 16, 2010, 3:05 p.m. , effective July 1, 2010 ]


Effective Date of Rule: July 1, 2010.

Purpose: Amend rules for HPA appeals, consistent with SHB 2935, the pertinent portions of which take effect on July 1, 2010. The department is in the process of developing permanent rules on this subject.

Citation of Existing Rules Affected by this Order: Amending WAC 220-110-030, 220-110-340, and 220-110-350.

Statutory Authority for Adoption: RCW 77.12.047 and 77.55.021 as amended by SHB 2935.

Other Authority: SHB 2935.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: SHB 2935 eliminates the hydraulic appeals board (HAB) and replaces it with the pollution control hearings board (PCHB) created in chapter 43.21B RCW, effective July 1, 2010. All formal appeals of HPA decisions and orders imposing civil penalties formerly heard by the HAB or an administrative law judge through the office of administrative hearings will now be heard by the PCHB. The Washington department of fish and wildlife (WDFW) must amend its HPA appeal rules to be consistent with the changes that SHB 2935 makes to chapter 77.55 RCW. In addition, WDFW is clarifying its rules for informal appeals. The department is in the process of developing permanent rules on this subject, but they will not be adopted by July 1, 2010. These emergency rules will implement the changes until the permanent rules are adopted.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 3, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 3, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: June 16, 2010.

Joe Stohr

for Philip Anderson

Director


NEW SECTION

WAC 220-110-03000A   Hydraulic project approvals -- Procedures.   Notwithstanding the provisions of WAC 220-110-030, effective immediately until further notice:

(1) The department shall administer this chapter in compliance with SEPA, chapter 43.21C RCW, and chapters 197-11 and 220-100 WAC.

(2) The department may, after consultation with the permittee, modify an HPA due to changed conditions. The modification becomes effective unless appealed as specified in RCW 77.55.021(4) and WACs 220-110-340 and 220-110-350.

[]


NEW SECTION

WAC 220-110-34000A   Informal appeal of administrative actions.   Notwithstanding the provisions of WAC 220-110-340, effective immediately until further notice:

The department recommends that a party aggrieved by the issuance, denial, conditioning, or modification of an HPA contact the department employee responsible for making the decision on the HPA before initiating an informal appeal. Discussion of concerns with the department employee often results in a resolution of the problem without the need for an informal appeal.

The department encourages aggrieved parties to take advantage of the informal appeal process before initiating a formal appeal. However, the informal appeal process is not mandatory, and a person may proceed directly to a formal appeal under WAC 220-110-350.

(1) This rule does not apply to any provisions or conditions in pamphlet HPAs or supplemental approvals as defined in WAC 220-110-020. A person who disagrees with a provision or condition in a pamphlet HPA or its supplemental approval may apply for an individual, written HPA.

(2) Any person with standing may request an informal appeal of the following department actions:

(a) The issuance, denial, conditioning, or modification of an HPA; or

(b) An order imposing civil penalties.

(3) A request for an informal appeal shall be in writing and shall be received by the department within thirty days from the date of receipt of the decision or order. "Date of receipt" means:

(a) Five business days after the date of mailing; or

(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt, however, may not exceed forty-five days from the date of mailing.

(4) Requests for informal appeal shall be mailed to the HPA Appeals Coordinator, Department of Fish and Wildlife, Habitat Program, 600 Capitol Way N., Olympia, Washington 98501-1091; e-mailed to HPAapplications@dfw.wa.gov; faxed to (360) 902-2946; or hand-delivered to the Natural Resources Building, 1111 Washington Street S.E., Habitat Program, Fifth floor.

(5) The request shall be plainly labeled as "Request for Informal Appeal" and shall include the following:

(a) The appellant's name, address, e-mail address (if available), and phone number;

(b) The specific department action that the appellant contests;

(c) The date the department issued, denied, conditioned, or modified an HPA, or the date the department issued the order imposing civil penalties;

(d) The log number or a copy of the HPA, or a copy of the order imposing civil penalties;

(e) A short and plain statement explaining why the appellant considers the department action or order to provide inadequate protection of fish life or to be otherwise unlawful;

(f) A clear and concise statement of facts to explain the appellant's grounds for appeal;

(g) Whether the appellant is the permittee, HPA applicant, landowner, resident, or another person with an interest in the department action in question;

(h) The specific relief requested;

(i) The attorney's name, address, e-mail address (if available) and phone number, if the person is represented by legal counsel; and

(j) The signature of the appellant or his or her attorney.

(6) Upon receipt of a valid request for an informal appeal, the department may initiate a review of the department action. If the appellant agrees, and the appellant applied for the HPA, resolution of the appeal may be facilitated through an informal conference. The informal conference is an optional part of the informal appeal and is normally a discussion between the appellant, the department employee responsible for the decision, and a supervisor. The time period for the department to issue a decision on an informal appeal is suspended during the informal conference process.

(7) If a resolution is not reached through the informal conference process, or the appellant is not the person who applied for the HPA, or the appeal involves an order imposing civil penalties, an informal appeal hearing shall be conducted by the HPA appeals coordinator or designee. Upon completion of the informal appeal hearing, the HPA appeals coordinator or designee shall recommend a decision to the director or the director's designee. This recommended decision shall be approved or disapproved by the director or the director's designee within sixty days of the date the informal appeal was received by the department, unless an extension of time is agreed to by the appellant. The department shall notify the appellant in writing of the decision of the director or the director's designee.

(8) If the department declines to initiate an informal review of its action after receipt of a valid request, or the appellant still wishes to contest the department action following completion of the informal appeal process, the appellant may initiate a formal appeal under WAC 220-110-350. Formal review must be requested within the time periods specified in WAC 220-110-350.

[]


NEW SECTION

WAC 220-110-35000A   Formal appeal of administrative actions.   Notwithstanding the provisions of WAC 220-110-350, effective immediately until further notice:

The department recommends that a party aggrieved by the issuance, denial, conditioning, or modification of an HPA contact the department employee responsible for making the decision on the HPA before initiating a formal appeal. Discussion of concerns with the department employee often results in a resolution of the problem without the need for a formal appeal.

The department encourages aggrieved parties to take advantage of the informal appeal process under WAC 220-110-340 before initiating a formal appeal. However, the informal appeal process is not mandatory, and a person may proceed directly to a formal appeal.

(1) This rule does not apply to any provisions or conditions in pamphlet HPAs or supplemental approvals as defined in WAC 220-110-020. A person who disagrees with a provision or condition in a pamphlet HPA or its supplemental approval may apply for an individual, written HPA.

(2) Any person with standing may request a formal appeal of the following department actions:

(a) The issuance, denial, conditioning, or modification of an HPA; or

(b) An order imposing civil penalties.

(3) As required by the Administrative Procedure Act, Chapter 34.05 RCW, the department shall inform the HPA permittee or applicant, or person subject to civil penalty order of the department, of the opportunity for appeal, the time within which to file a written request for an appeal, and the place to file it.

(4) A request for a formal appeal shall be in writing and shall be filed with the clerk of the pollution control hearings board (PCHB) and served on the department within thirty days from the date of receipt of the decision or order. "Date of receipt" means:

(a) Five business days after the date of mailing; or

(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt, however, may not exceed forty-five days from the date of mailing.

(5) Service on the department shall be mailed to the HPA Appeals Coordinator, Department of Fish and Wildlife, Habitat Program, 600 Capitol Way N., Olympia, Washington 98501-1091; e-mailed to HPAapplications@dfw.wa.gov; faxed to (360) 902-2946; or hand-delivered to the Natural Resources Building, 1111 Washington Street S.E., Habitat Program, Fifth floor.

(6) The time period for requesting a formal appeal is suspended during consideration of a timely informal appeal. If there has been an informal appeal, the deadline for requesting a formal appeal shall be within thirty days from the date of receipt of the department's written decision in response to the informal appeal.

(7) The request for formal appeal shall contain the information required by WAC 371-08-340.

(8) The department in its discretion may stay the effectiveness of any decision or order that has been appealed to the PCHB. The department will use the standards in WAC 371-08-415(4) to make a decision on any stay request. At any time during the appeal to the PCHB, the appellant may apply to the PCHB for a stay of the decision or order, or removal of a stay imposed by the department.

(9) If there is no timely request for an appeal, the department action shall be final and unappealable.

[]

Washington State Code Reviser's Office