WSR 13-03-120




[ Filed January 18, 2013, 4:15 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-17-031 on August 7, 2012.

     Title of Rule and Other Identifying Information: WAC 220-110-085 Integration of hydraulic project approvals and forest practices applications.

     Hearing Location(s): Natural Resources Building, Room 175 A/B, 1111 Washington Street S.E., Olympia, WA 98504, on February 27, 2013, at 1:00 p.m.

     Date of Intended Adoption: March 1, 2013.

     Submit Written Comments to: Lori Preuss, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail, fax (360) 902-2155, by February 20, 2013.

     Assistance for Persons with Disabilities: Contact Tami Lininger by February 20, 2013, TTY (360) 902-2207 or (360) 902-2267.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules will identify the procedures that the Washington department of fish and wildlife (WDFW) habitat biologists will use to review and provide concurrence determinations on specific forest practices hydraulic project types identified in 2ESSB 6406 (2012). The rules direct WDFW's internal procedures only and include guidelines for the manner in which WDFW biologists will work with the department of natural resources (DNR) and applicants to help ensure that projects meet fish protection standards. The rules do not provide any legal requirements for outside entities.

     These rules will provide a new section within the hydraulic code rules (chapter 220-110 WAC).

     Reasons Supporting Proposal: This rule making was mandated by 2ESSB 6406 to fulfill one of WDFW's obligations associated with integrating the agency's hydraulic code fish protection standards into DNR's forest practices rules.

     Statutory Authority for Adoption: 2ESSB 6406 and RCW 77.55.361 and 76.09.490.

     Statute Being Implemented: 2ESSB 6406 and RCW 77.55.361 and 76.09.490.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: WDFW, governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Terry Jackson, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2609; and Enforcement: Bruce Bjork, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2373.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule is a procedural rule, which affects only internal agency procedures.

     A cost-benefit analysis is not required under RCW 34.05.328. This proposal only affects internal agency procedures. It does not affect the business of external entities.

January 18, 2013

Lori Preuss

Rules Coordinator


WAC 220-110-085   Integration of hydraulic project approvals and forest practices applications.   (1) Description. In 1999, the Forests and Fish Report and Engrossed Substitute House Bill 2091, which amended the Forest Practices Act, chapter 76.09 RCW, envisioned a more integrated approach to permitting hydraulic projects that also require forest practices applications (FPAs). In May 2001, the forest practices board adopted permanent forest practices rules in TITLE 222 WAC, which incorporated fish protection measures normally included in hydraulic project approvals (HPAs) for projects in nonfish-bearing waters.

     In April 2012, the legislature, through Second Engrossed Substitute Senate Bill 6406, amended the Forest Practices Act in chapter 76.09 RCW and the hydraulic code statutes in chapter 77.55 RCW. The amendment requires integration of hydraulic code rule fish protection standards (TITLE 220 WAC) into the forest practices rules for hydraulic projects in fish-bearing waters on forest land. As codified in RCW 77.55.361 and 76.09.040, the requirements of the hydraulic code rules will no longer apply to any forest practices hydraulic project as soon as fish protection standards have been integrated into the forest practices rules, and technical guidance has been developed and approved for inclusion in the Forest Practices Board Manual. Thereafter, forest practices hydraulic projects will be regulated under forest practices rules. The amended statutes also include a requirement that the department of fish and wildlife (department) adopt rules establishing the procedures for the concurrence review process. This process is outlined in subsection (3) of this section.

     (2) General review and comment on forest practices hydraulic projects.

     (a) The department may review and provide comments on any FPA.

     (b) For FPAs that include a forest practices hydraulic project involving fish-bearing waters or shorelines of the state, the department must review the forest practices hydraulic projects and either provide comments to the department of natural resources (DNR), or document that the review has occurred without the need for comments. Prior to commenting, or as soon as reasonably practicable, the department will communicate with the applicant regarding any concerns relating to consistency with fish protection standards. The department will also strive to maintain communications with DNR as concerns arise and to inform DNR of communications with applicants.

     (c) The department will encourage forest landowners to consult with department biologists, including site visits as needed, prior to submitting an FPA containing a hydraulic project. This will help ensure that project design plans and specifications meet fish protection standards. Preapplication collaboration with the department will result in more efficient and successful outcomes for forest landowners and their proposed hydraulic projects.

     In addition to the general review and comment process for forest practices hydraulic projects described in this subsection, hydraulic projects meeting the criteria described in subsection (3)(a) of this section will follow the concurrence review process.

     (3) Concurrence review process.

     (a) The department must review forest practices hydraulic projects meeting the following criteria and provide written comments to DNR on the project's ability to meet fish protection standards:

     (i) Culvert installation or replacement, and repair at or below the bankfull width, as that term is defined in WAC 222-16-010 on July 10, 2012, in fish-bearing rivers and streams that exceed five percent gradient;

     (ii) Bridge construction or replacement, and repair at or below the bankfull width, of fish-bearing unconfined streams; or

     (iii) Fill within the flood level - 100 year, as that term is defined in WAC 222-16-010 on July 10, 2012, of fish-bearing unconfined streams.

     (b) After the department receives notification from DNR that a FPA includes one or more hydraulic projects meeting the criteria in (a) of this subsection, the department has thirty days to review the forest practices hydraulic project(s) for consistency with fish protection standards.

     (c) Within five business days following notification from DNR, or as soon as reasonably practicable thereafter, the department will determine whether all information, needed for assessing the hydraulic project's consistency with fish protection standards, is included in the application.

     (d) If information is missing, the department will contact the applicant to request the missing information. The department will also provide written notification to DNR, indicating that specific information is missing and that the applicant has been notified. The department may issue a nonconcurrence on a proposed project if the applicant fails to provide missing information in time for the department to perform its thirty-day review.

     (e) If, during the thirty-day concurrence review period, the department determines that a forest practices hydraulic project may not be consistent with fish protection standards, the department will attempt to work with the applicant to modify the proposed project. The department will strive to include DNR participation on site visits with the applicant as needed.

     (f) The department must provide written notification of concurrence or nonconcurrence to DNR within the thirty-day review period, stating whether or not the hydraulic project is consistent with fish protection standards. As part of the written notification to DNR, the department must provide information about the outcomes of any meetings with the applicant, including agreements or disagreements, any missing information requested, and any proposed changes needed to meet fish protection standards.

     (g) The department will recommend that DNR deny the FPA when efforts described in (e) of this subsection have not resulted in a successful outcome, the project will result in direct or indirect harm to fish life, and adequate mitigation cannot be assured by modifying the hydraulic project proposal or by DNR's agreement to add appropriate provisions to the FPA.