WSR 97-07-077

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

(Fisheries)

[Filed March 19, 1997, 11:40 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-01-112.

Title of Rule: Noxious weed control and control of other aquatic plants.

Purpose: Provide general rules for noxious weed control, and control of other aquatic plants.

Statutory Authority for Adoption: RCW 75.08.080, 75.20.108.

Statute Being Implemented: RCW 75.20.108.

Summary: Establish pamphlet hydraulic project approval and provide general guidelines for removal of noxious weeds. Allows spartina removal and hand removal of purple loose-strife without approval. Guidelines apply to all aquatic plants.

Reasons Supporting Proposal: Expedite noxious weed removal, and control of other aquatic plants.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, 902-2930; Implementation: Karen Terwilliger, 1111 Washington Street, Olympia, 902-2600; and Enforcement: Ron Swatfigure, 1111 Washington Street, Olympia, 902-2925.

Name of Proponent: Washington State Department of Fish and Wildlife, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: These rules will allow for aquatic weed removal without individual hydraulic project approval in certain cases, establish general guidelines for control and provide definitions for use of the hydraulics code. The effect will be to reduce the number of hydraulic project approvals processed by the department, and expedite noxious weed removal.

Proposal Changes the Following Existing Rules: Amends definition section. Exempts spartina control from hydraulic project approval.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

1. Description of reporting, record keeping and other compliance measures required by the proposal: Permittees are required to fill out and return a simple one-page tracking form at the completion of their project. If permittees propose control methods that exceed thresholds established in the rule, prior authorization is required to be obtained from the Washington Department of Fish and Wildlife.

2. Professional services required for compliance: None.

3. Costs of compliance, including costs of equipment, supplies, labor and increased administrative costs: The minor cost of calling or mailing a letter to the Washington Department of Fish and Wildlife to request a pamphlet. The pamphlet itself will be free. Administrative costs will not be increased, and in most instances, decreased because an individual hydraulic project approval will not have to be obtained for many projects. At present all projects must obtain an individual permit.

4. Will compliance cause businesses to lose sales or revenue? No, the rules will make it easier for businesses to conduct aquatic plant control projects. Ease of compliance should reduce costs and therefore increase revenues for businesses.

5. Comparison of costs for the 10% of businesses that are the largest businesses required to comply with the proposed rule: Not applicable, based on answers to #3 and #4, above.

6. Steps taken by the agency to reduce the costs of the rule on small businesses: None needed.

7. Description of how the agency will involve small business in the development of the rule: Small businesses were represented in the advisory committee that provided input to the agency during development of the public review draft. The input was provided at several meetings, through written comments, and phone calls. Small businesses will be notified about the public hearings and invited to provide testimony.

8. List of industries required to comply with this rule: No additional industries are required to comply.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption.

1. Clearly state in detail the general goals and specific objectives of the statute that the rule implements: This rule implements RCW 75.20.108, the general goal of which is the removal or control of aquatic noxious weeds (other than spartina) for projects that will use, divert, obstruct or change the natural flow or bed of any of the salt or fresh waters of the state. The specific objectives are to require the Washington Department of Fish and Wildlife (WDFW) to develop and adopt rules that describe acceptable methods for removal or control. The rules also provide environmentally sound methods for limited control of aquatic plants (other than aquatic noxious weeds) around docks and shoreline areas. Following adoption of the rules the WDFW is to produce and distribute a pamphlet that describes the methods that are approved in the rules. The pamphlet serves as the hydraulic project approval (HPA) for any project that is conducted as described in the pamphlet.

2. Determine that the rule is needed to achieve the general goals and specific objectives stated above and analyze alternatives to rule making and the consequences of not adopting the rule: WDFW has been specifically directed by the legislature to adopt these rules. As a result there are no alternatives to rule making. The consequences of not adopting the rules would be a violation of delegated duty.

3. Determine that the probable benefits of the rule are greater than its probable costs, taking into account both the qualitative and quantitative benefits and costs and the specific directives of the statute being implemented: The benefits of the rules are clearly encoded practices for control of aquatic plants that follow currently accepted industry standards while being protective of fish life. This increases regulatory predictability for the public. The rules also allow for a pamphlet to serve as the HPA reducing cost of permit compliance. More importantly, the rules/pamphlet package should lead to an increased effectiveness of control of noxious aquatic plants state-wide and hence a reduction in the economic costs and ecological consequences of increased spread of the weeds.

The rules per se do not increase compliance costs to the public since they are currently required to obtain an individual HPA for the mechanical control of aquatic plants.

4. Determine, after considering alternative versions of the rule and the analysis required under 2 and 3 above that the rule being adopted is the least burdensome alternative for those required to comply with it that will achieve the general goals and specific objectives stated under 1 above: The proposed final version of the rule is considered to be the least burdensome alternative because it was developed in consultation with an advisory committee that included a range of experts in aquatic plant management. These experts included representatives from small businesses, county weed boards, lakeside residents, academic institutions, environmental organizations, and government agencies (see appended list). Several drafts were prepared and reviewed, and discussed at meetings. Each iteration incorporated practical advice on the least burdensome and yet still effective methods of achieving the goals and objectives set forth under #1, above.

5. Determine that the rule does not require those to whom it applies to take an action that violates requirements of another federal or state law: Applicable laws have been checked, and to the best of our knowledge the rule does not require those to whom it applies to take an action that violates requirements of another federal or state law.

6. Determine that the rule does not impose more stringent performance requirements on private entities than on public entities unless required to do so by federal or state law: The rule has the same requirements for any entity - public or private.

7. Determine if the rule differs from any federal regulation or statute applicable to the same activity or subject matter and, if so, determine that the difference is justified by the following:

a) A state statute that explicitly allows the agency to differ from federal standards; or

b) substantial evidence that the difference is necessary to achieve the general goals and specific objectives stated under 1 above: See answer to #5, above.

8. Coordinate the rule, to the maximum extent practicable, with other federal, state, and local laws applicable to the same activity or subject matter: The rules were developed [in] consultation with an advisory committee that included representatives from federal, state, and local agencies. The implementation of the rule will include distribution of an informational brochure that will describe in brief the requirements and where to obtain the pamphlet HPAs. The brochures will be distributed to applicable federal, state and local agencies, including the permit assistance center at the Department of Ecology.

The following describes how WDFW intends to: 1. Implement and enforce the rule, including a description of the resources the agency intends to use; 2. inform and educate affected persons about the rule; 3. promote and assist voluntary compliance; 4. evaluate whether the rule achieves the purpose for which it was adopted, including, to the maximum extent practicable, the use of interim milestones to assess progress and the use of objectively measurable outcomes.

1. Implementation and enforcement of the rule: WDFW will implement the rule by publicizing its existence primarily through an informational brochure. This brochure will describe in brief rule provision and where to obtain the pamphlet HPAs. The brochures will be distributed to applicable federal, state and local agencies, including the permit assistance center at the Department of Ecology. The rules will also be publicized opportunistically through seminars, workshops, and meetings.

Enforcement will be through spot checks of projects by WDFW enforcement staff using information obtained when applicants obtained their pamphlet and from area habitat biologists. Area habitat biologists will also undertake spot checks.

2. Information and education: The affected public will be informed and educated about the rule using the brochure, workshops, seminars and meetings described in 1, above.

3. Promotion of voluntary compliance: Voluntary compliance of the rule will be promoted using the brochure, workshops, seminars and meetings described in 1, above. In addition, area habitat biologists will provide onsite technical assistance visits to applicants, as staff resources permit.

4. Rule evaluation: Pamphlet applicants are required to fill out and return a tracking form after their project is completed. The completed form will provide information on location, planning processes, type of plants controlled, methods employed as well as comments and suggestions. WDFW will use this information to obtain a better idea where and what type of aquatic plant problems are being addressed. The comments and suggestions will be used to find ways to further streamline the pamphlet and to include new and innovative control methods while still being protective of fish life. Staff resources permitting, a meeting of the advisory committee and other interested parties will be convened no later than two years after rule adoption to undertake a thorough analysis of the rule/pamphlet package. Updates in the rule and pamphlet will be made accordingly.

Hearing Location: The department will hold public hearings beginning at 7:00 p.m. on the following dates at the following locations: April 22, 1997, Natural Resources Building, Room 172, 1111 Washington Street, Olympia, WA; on April 24, 1997, Edmonds Community College, 20000 68th Avenue West, Room 202B, Lynnwood, WA; and on April 28, 1997, PUD Auditorium, Grant County Public Utility District, 312 West 3rd Avenue, Ephrata, WA.

Assistance for Persons with Disabilities: Contact Robin Ayers by April 8, 1997, TDD (360) 902-2207, or (360) 902-2933.

Submit Written Comments to: Evan Jacoby, Washington Department of Fish and Wildlife, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501, FAX (360) 902-2930, by April 21, 1997.

Date of Intended Adoption: May 5, 1997.

March 19, 1997

Evan Jacoby

Rules Coordinator

AMENDATORY SECTION (Amending Order 94-160, filed 11/14/94, effective 12/15/94)

WAC 220-110-010 Purpose. It is the intent of the department to provide protection for all fish life through the development of a state-wide system of consistent and predictable rules. The department will coordinate with other local, state, and federal regulatory agencies, and tribal governments, to minimize regulatory duplication. Pursuant to chapter 75.20 RCW, this chapter establishes regulations for the construction of hydraulic project(s) or performance of other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state, and sets forth procedures for obtaining a hydraulic project approval (HPA). In addition, this chapter incorporates criteria generally used by the department ((of fish and wildlife)) for project review and conditioning HPAs.

The technical provisions in WAC 220-110-040 through ((220-110-330)) 220-110-338 represent common provisions for the protection of fish life for typical projects proposed to the department. Implementation of these provisions is necessary to minimize project specific and cumulative impacts to fish life. These regulations reflect the best available science and practices related to protection of fish life. The department will incorporate new information as it becomes available, and to allow for alternative practices that provide equal or greater protection for fish life.

The technical provisions shall apply to a hydraulic project when included as provisions on the HPA. Each application shall be reviewed on an individual basis. Common technical provisions applicable to a specific project may be modified or deleted by the department pursuant to WAC 220-110-032. HPAs may also be subject to additional special provisions to address project or site-specific considerations not adequately addressed by the common technical provisions.

[Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), 220-110-010, filed 11/14/94, effective 12/15/94; 87-15-086 (Order 87-48), 220-110-010, filed 7/20/87. Statutory Authority: RCW 75.08.012, 75.08.080 and 75.20.100. 84-04-047 (Order 84-04), 220-110-010, filed 1/30/84. Statutory Authority: RCW 75.20.100 and 75.08.080. 83-09-019 (Order 83-25), 220-110-010, filed 4/13/83.]

AMENDATORY SECTION (Amending Order 94-160, filed 11/14/94, effective 12/15/94)

WAC 220-110-020 Definitions. As used in this chapter, unless the context clearly requires otherwise:

(1) "Aquatic beneficial plant" means native and nonnative aquatic plants not prescribed by RCW 17.10.010(10), and that are of value to fish life.

(2) "Aquatic noxious weed" means an aquatic weed on the state noxious weed list as prescribed by RCW 17.10.010(10).

(3) "Aquatic plant" means any aquatic noxious weed and aquatic beneficial plant that occurs within the ordinary high water line of waters of the state.

(4) "Beach area" means the beds between the ordinary high water line and extreme low tide.

(((2))) (5) "Bed" means the land below the ordinary high water lines of state waters. This definition shall not include irrigation ditches, canals, storm water run-off devices, or other artificial watercourses except where they exist in a natural watercourse that has been altered by man.

(((3))) (6) "Bed materials" means natural-occurring material, including aquatic plants, found in the beds of state waters.

(((4))) (7) "Bio-degradable" means material that is capable of being readily decomposed by biological means, such as by bacteria.

(8) "Bio-engineering" means project designs or construction methods which use live woody vegetation or a combination of live woody vegetation and specially developed natural or synthetic materials to establish a complex root grid within the existing bank which is resistant to erosion, provides bank stability, and maintains a healthy riparian environment with habitat features important to fish life. Use of wood structures or limited use of clean angular rock may be allowable to provide stability for establishment of the vegetation.

(((5))) (9) "Bottom barrier or screen" means synthetic or natural fiber sheets of material used to cover and kill plants growing on the bottom of a watercourse.

(10) "Bulkhead" means a vertical or nearly vertical erosion protection structure placed parallel to the shoreline consisting of concrete, timber, steel, rock, or other permanent material not readily subject to erosion.

(((6))) (11) "Cofferdam" means a temporary enclosure used to keep water from a work area.

(((7))) (12) "Control" means level of treatment of aquatic noxious weeds as prescribed by RCW 17.10.010(5).

(13) "Department" means the department of fish and wildlife.

(((8))) (14) "Diver-operated dredging" means the use of portable suction or hydraulic dredges held by SCUBA divers to remove aquatic plants.

(15) "Drawdown" means decreasing the level of standing water in a watercourse to expose bottom sediments and rooted plants.

(16) "Dredging" means removal of bed material using other than hand held tools.

(((9))) (17) "Early infestation" means an aquatic noxious weed whose stage of development, life history, or area of coverage makes one hundred percent control and eradication as prescribed by RCW 17.10.010(5) likely to occur.

(18) "Emergency" means an immediate threat to life, public or private property, or an immediate threat of serious environmental degradation, arising from weather or stream flow conditions, other natural conditions, or fire.

(((10))) (19) "Entrained" means the entrapment of fish into a watercourse diversion without the presence of a screen, into high velocity water along the face of an improperly designed screen, or into the vegetation cut by a mechanical harvester.

(20) "Equipment" means any device powered by internal combustion; hydraulics; electricity, except less than one horsepower; or livestock used as draft animals, except saddle horses; and the lines, cables, arms, or extensions associated with the device.

(((11))) (21) "Eradication" See "control."

(22) "Established ford" means a crossing place in a watercourse that was in existence and annually used prior to 1986 or subsequently permitted by the department, and, has identifiable approaches on the streambanks.

(((12))) (23) "Extreme low tide" means the lowest level reached by a receding tide.

(((13))) (24) "Farm and agricultural land" means those lands identified as such in RCW 84.34.020.

(((14))) (25) "Filter blanket" means a layer or combination of layers of pervious materials (organic, mineral, or synthetic) designed and installed in such a manner as to provide drainage, yet prevent the movement of soil particles due to flowing water.

(((15))) (26) "Fish life" means all fish species, including but not limited to food fish, shellfish, game fish, and other nonclassified fish species and all stages of development of those species.

(((16))) (27) "Food fish" means those species of the classes Osteichthyes, Agnatha, and Chondrichthyes that shall not be fished for except as authorized by rule of the director of the department of fish and wildlife.

(((17))) (28) "Freshwater area" means those state waters and associated beds below the ordinary high water line that are upstream of river mouths including all lakes, ponds, and streams.

(((18))) (29) "Game fish" means those species of the class Osteichthyes that shall not be fished for except as authorized by rule of the fish and wildlife commission.

(((19))) (30) "General provisions" means those provisions that are contained in every (HPA).

(((20))) (31) "Hand cutting" means the removal or control of aquatic plants with the use of hand-held tools or equipment, or equipment that is carried by a person when used.

(32) "Hand-held tools" means tools that are held by hand and are not powered by internal combustion, hydraulics, pneumatics, or electricity. Examples are shovels, rakes, hammers, etc.

(((21))) (33) "Hatchery" means any water impoundment or facility used for the captive spawning, hatching, or rearing of fish and shellfish.

(((22))) (34) "Hydraulic project" means construction or performance of other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state. Hydraulic projects include forest practice activities, conducted pursuant to the forest practices rules (Title 222 WAC), that involve construction or performance of other work in or across the ordinary high water line of:

(a) Type 1-3 waters; or

(b) Type 4 and 5 waters with identifiable bed or banks where there is a hatchery water intake within two miles downstream; or

(c) Type 4 and 5 waters with identifiable bed or banks within one-fourth mile of Type 1-3 waters where any of the following conditions apply:

(i) Where the removal of timber adjacent to the stream is likely to result in entry of felled trees into flowing channels;

(ii) Where there is any felling, skidding, or ground lead yarding through flowing water, or through dry channels with identifiable bed or banks with gradient greater than twenty percent;

(iii) Where riparian or wetland leave trees are required and cable tailholds are on the opposite side of the channel;

(iv) Where road construction or placement of culverts occurs in flowing water;

(v) Where timber is yarded in or across flowing water;

(d) Type 4 and 5 waters with identifiable bed or banks that are likely to adversely affect fish life, where the HPA requirement is noted by the department in response to the forest practice application.

Hydraulic projects and associated permit requirements for specific project types are further defined in other sections of this chapter.

(((23))) (35) "Hydraulic project application" means a form provided by and submitted to the department of fish and wildlife accompanied by plans and specifications of the proposed hydraulic project.

(((24))) (36) "Hydraulic project approval" (HPA) means:

(a) A written approval for a hydraulic project signed by the director of the department of fish and wildlife, or the director's designates; or

(b) A verbal approval for an emergency hydraulic project from the director of the department of fish and wildlife, or the director's designates; or

(c) A "Gold and Fish" pamphlet issued by the department which identifies and authorizes specific minor hydraulic project activities for mineral prospecting (panning); or

(d) An "Irrigation and Fish" pamphlet issued by the department which identifies and authorizes specific minor hydraulic project activities; or

(e) An "Aquatic Plants and Fish" pamphlet issued by the department which identifies and authorizes specific aquatic noxious weed and aquatic beneficial plant removal and control activities.

(((25))) (37) "Large woody material" means trees or tree parts larger than four inches in diameter and longer than six feet and rootwads, wholly or partially waterward of the ordinary high water line.

(((26))) (38) "Mean higher high water" or "MHHW" means the tidal elevation obtained by averaging each day's highest tide at a particular location over a period of nineteen years. It is measured from the MLLW = 0.0 tidal elevation.

(((27))) (39) "Mean lower low water" or "MLLW" means the 0.0 tidal elevation. It is determined by averaging each days' lowest tide at a particular location over a period of nineteen years. It is the tidal datum for vertical tidal references in the saltwater area.

(((28))) (40) "Mechanical harvesting and cutting" means the partial removal or control of aquatic plants with the use of aquatic mechanical harvesters which cut and collect aquatic plants, and mechanical cutters which only cut aquatic plants.

(41) "Mitigation" means actions which shall be required as provisions of the HPA to avoid or compensate for impacts to fish life resulting from the proposed project activity. The type(s) of mitigation required shall be considered and implemented, where feasible, in the following sequential order of preference:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation;

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

(e) Compensating for the impact by replacing or providing substitute resources or environments; or

(f) Monitoring the impact and taking appropriate corrective measures to achieve the identified goal.

For projects with potentially significant impacts, a mitigation agreement may be required prior to approval. Replacement mitigation may be required to be established and functional prior to project construction.

(((29))) (42) "Natural conditions" means those conditions which arise in or are found in nature. This is not meant to include artificial or manufactured conditions.

(((30))) (43) "No-net-loss" means:

(a) Avoidance or mitigation of adverse impacts to fish life; or

(b) Avoidance or mitigation of net loss of habitat functions necessary to sustain fish life; or

(c) Avoidance or mitigation of loss of area by habitat type.

Mitigation to achieve no-net-loss should benefit those organisms being impacted.

(((31))) (44) "Ordinary high water line" means the mark on the shores of all waters that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual and so long continued in ordinary years, as to mark upon the soil or vegetation a character distinct from that of the abutting upland: Provided, That in any area where the ordinary high water line cannot be found the ordinary high water line adjoining saltwater shall be the line of mean higher high water and the ordinary high water line adjoining freshwater shall be the elevation of the mean annual flood.

(((32))) (45) "Person" means an individual or a public or private entity or organization. The term "person" includes local, state, and federal government agencies, and all business organizations.

(((33))) (46) "Protection of fish life" means prevention of loss or injury to fish or shellfish, and protection of the habitat that supports fish and shellfish populations.

(((34))) (47) "Purple loosestrife" means Lythrum salicaria and Lythrum virgatum as prescribed in RCW 17.10.010(10) and defined in RCW 17.26.020 (5)(b).

(48) "River or stream." See "watercourse."

(((35))) (49) "Rotovation" means the use of aquatic rotovators which have underwater rototiller-like blades to uproot aquatic plants as a means of plant control.

(50) "Saltwater area" means those state waters and associated beds below the ordinary high water line and downstream of river mouths.

(((36))) (51) "Shellfish" means those species of saltwater and freshwater invertebrates that shall not be taken except as authorized by rule of the director of the department of fish and wildlife. The term "shellfish" includes all stages of development and the bodily parts of shellfish species.

(((37))) (52) "Spartina" means Spartina alterniflora, Spartina anglica, Spartina x townsendii, and Spartina patens as prescribed in RCW 17.10.010(10) and defined in RCW 17.26.020 (5)(a).

(53) "Special provisions" means those conditions that are a part of the (HPA), but are site or project specific, and are used to supplement or amend the technical provisions.

(((38))) (54) "Streambank stabilization" means those projects which prevent or limit erosion, slippage, and mass wasting; including, but not limited to bank resloping, log and debris relocation or removal, planting of woody vegetation, bank protection (physical armoring of streambanks using rock or woody material, or placement of jetties or groins), gravel removal or erosion control.

(((39))) (55) "Technical provisions" means those conditions that are a part of the (HPA) and apply to most projects of that nature.

(((40))) (56) "Toe of the bank" means the distinct break in slope between the stream bank or shoreline and the stream bottom or marine beach or bed, excluding areas of sloughing. For steep banks that extend into the water, the toe may be submerged below the ordinary high water line. For artificial structures, such as jetties or bulkheads, the toe refers to the base of the structure, where it meets the stream bed or marine beach or bed.

(((41))) (57) "Viable" means that any plant or plant part is capable of taking root or living when introduced into a body of water.

(58) "Watercourse" and "river or stream" means any portion of a channel, bed, bank, or bottom waterward of the ordinary high water line of waters of the state including areas in which fish may spawn, reside, or through which they may pass, and tributary waters with defined bed or banks, which influence the quality of fish habitat downstream. This includes watercourses which flow on an intermittent basis or which fluctuate in level during the year and applies to the entire bed of such watercourse whether or not the water is at peak level. This definition does not include irrigation ditches, canals, storm water run-off devices, or other entirely artificial watercourses, except where they exist in a natural watercourse which has been altered by humans.

(((42))) (59) "Water right" means a certificate of water right, a vested water right or a claim to a valid vested water right, or a water permit, pursuant to Title 90 RCW.

(((43))) (60) "Waters of the state" or "state waters" means all salt waters and fresh waters waterward of ordinary high water lines and within the territorial boundaries of the state.

(((44))) (61) "Water type" means water categories as defined in WAC 222-16-030 of the forest practice rules and regulations((, published and dated November 1, 1988)).

(((45))) (62) "Weed rolling" means the use of a mechanical roller designed to control aquatic plant growth.

(63) "Wetted perimeter" means the areas of a watercourse covered with water, flowing or nonflowing.

[Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), 220-110-020, filed 11/14/94, effective 12/15/94; 87-15-086 (Order 87-48), 220-110-020, filed 7/20/87. Statutory Authority: RCW 75.08.012, 75.08.080 and 75.20.100. 84-04-047 (Order 84-04), 220-110-020, filed 1/30/84. Statutory Authority: RCW 75.20.100 and 75.08.080. 83-09-019 (Order 83-25), 220-110-020, filed 4/13/83.]

NEW SECTION

WAC 220-110-031 Pamphlet hydraulic project approvals--Procedures. (1) In those instances where a pamphlet is the equivalent of an HPA as defined in WAC 220-110-020(36), a person shall obtain a pamphlet HPA issued by the department which identifies and authorizes specific minor hydraulic project activities before conducting a hydraulic project.

(2) The pamphlet HPA, or clear reproduction, shall be on the project site when work is being conducted and shall be immediately available for inspection.

(3) The pamphlet HPA shall be conditioned to ensure protection of fish life.

(4) Pamphlet HPAs do not exempt the applicant from obtaining other appropriate permits and following the rules or regulations of local, federal, and other Washington state agencies.

(5) Administration of this chapter shall be conducted in compliance with SEPA, chapter 43.21C RCW, and chapters 197-11, 220-100, and 232-19 WAC.

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AMENDATORY SECTION (Amending Order 94-160, filed 11/14/94, effective 12/15/94)

WAC 220-110-035 Miscellaneous hydraulic projects--Permit requirements and exemptions. (1) Operators of mechanical or hydraulic clam harvesters shall be required to obtain an HPA and comply with provisions of WAC 220-52-018, and shall obtain and comply with the provisions of the department's permit to operate a clam harvesting machine.

(2) ((Noxious aquatic weed control by hand pulling or hand-held tools does not require hydraulic project approval.)) An activity conducted solely for the removal or control of spartina does not require an HPA. An activity conducted solely for the removal or control of purple loosestrife and which is performed with hand-held tools, hand-held equipment, or equipment carried by a person when used does not require an HPA. Any other activity conducted solely for the removal or control of aquatic noxious weeds or aquatic beneficial plants shall require either a copy of the current Aquatic Plants and Fish pamphlet HPA available from the department or an individual HPA.

(3) The installation, by hand or hand-held tools, of small scientific markers, oyster stakes, boundary markers, or property line markers does not require an HPA.

(4) Driving a vehicle or operating equipment on or across an established ford does not require an HPA. However, ford repair with equipment or construction work waterward of the ordinary high water lines requires an HPA. Driving a vehicle or operating equipment on or across wetted stream beds at areas other than established fords requires an HPA. HPAs for new fords issued subsequent to January 1995 shall require that the entry and exit points of the ford not exceed one hundred feet upstream or downstream of each other.

(5) A person conducting a remedial action under a consent decree, order, or agreed order, pursuant to chapter 70.105D RCW, and the department of ecology when it conducts a remedial action, are exempt from the procedural requirements of the Hydraulic Code. Compliance with the substantive provisions of the Hydraulic Code is required.

(6) The technical and special provisions of an individual or a pamphlet HPA shall be followed by the permit holder, equipment operator(s), and other individuals conducting the project.

[Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), 220-110-035, filed 11/14/94, effective 12/15/94.]

NEW SECTION

WAC 220-110-331 Aquatic plant removal and control technical provisions. WAC 220-110-332 through 220-110-338 set forth technical provisions that shall apply to hydraulic projects that control or remove aquatic plants. Aquatic plant removal and control methods include physical, mechanical, biological and chemical control methods. Often the best approach to aquatic plant control and removal is through the development of a vegetation management plan. A vegetation management plan is a comprehensive approach to control of aquatic plants where all forms of control strategies are considered and usually some combination of techniques is selected and implemented in a planned manner. These plans are based on the idea that decisions should be centered upon an understanding of the biology and ecology of the aquatic plant to be controlled and the environmental characteristics of the site. Integrated vegetation management planning is encouraged at all times to comprehensively address aquatic plant problems for a watercourse. Certain technical provisions shall be required depending upon the individual proposal and site specific characteristics. Additional special provisions may be included, as necessary to address site-specific conditions. Those provisions, where applicable, shall be contained in the HPA (pamphlet or individual), as necessary to protect fish life. HPAs shall have specific time limitations on project activities to protect fish life. Information concerning timing shall be included with the pamphlet HPA. Saltwater provisions may be applied to tidally influenced areas upstream of river mouths and the mainstem Columbia River downstream of Bonneville Dam where applicable.

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NEW SECTION

WAC 220-110-332 Hand removal or control. A copy of the current Aquatic Plants and Fish pamphlet available from the department shall serve as an HPA, unless otherwise indicated, and be on the job site at all times. Hand removal or control of aquatic plants is useful for eradication of an aquatic noxious weed early infestation. Hand removal or control can be effective for small, confined areas. Hand removal or control of aquatic plants projects may incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to hand removal or control of both aquatic noxious weed and aquatic beneficial plant projects except where otherwise indicated:

(1) Work shall be restricted to the use of hand-pulling, hand-held tools or equipment, or equipment that is carried when used.

(2) After prior authorization by the department, removal of aquatic beneficial plants may occur for a distance of up to fifty linear feet or one-half the length of the applicant's shoreline, whichever is less, and not to exceed two thousand five hundred square feet. Projects requiring the removal of aquatic beneficial plants covering a greater area shall require an individual, written HPA.

(3) Where possible, the entire plant shall be removed when using hand-pulling.

(4) Removal of detached plants and plant fragments from the watercourse shall be as complete as possible. This is especially important when removing or controlling aquatic noxious weeds. Detached plants and plant fragments shall be disposed of at an upland site so as not to reenter state waters.

(5) Existing fish habitat components such as logs, stumps, and large boulders shall not be removed or disturbed.

(6) Work shall be conducted to minimize the release of sediment and sediment-laden water from the project site.

(7) Extreme care shall be taken to ensure that no petroleum products, hydraulic fluid or other deleterious material from equipment used are allowed to enter or leach into the watercourse.

(8) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(9) Every effort shall be made to avoid the spread of plant fragments through equipment contamination. Persons or firms using any equipment to remove or control aquatic plants shall thoroughly remove and properly dispose of all viable residual plants and viable plant parts from the equipment prior to the equipment's use in a body of water.

(10) After prior authorization by the department, raking may occur in fish spawning areas.

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NEW SECTION

WAC 220-110-333 Bottom barriers or screens. A copy of the current Aquatic Plants and Fish pamphlet available from the department shall serve as an HPA, unless otherwise indicated, and be on the job site at all times. Bottom barriers or screens are useful for eradication of an aquatic noxious weed early infestation. Bottom barriers or screens are best used in small, confined areas where control of all plants is desirable. Bottom barrier or screen projects may incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to bottom barrier or screen projects for both aquatic noxious weed or aquatic beneficial plant control or removal except where otherwise indicated:

(1) Due to potential impacts to sockeye spawning areas, prior authorization by the department shall be required for activities in Baker Lake and Lakes Osoyoos, Ozette, Pleasant, Quinault, Sammamish, Washington, and Wenatchee. Authorization may or may not be given for the activity, and if given, may require mitigation through a written agreement between the applicant and the department for impacts by the activity to the spawning area.

(2) For removal and control of aquatic noxious weeds, bottom barrier or screen material shall not cover more than fifty percent of the length of the applicant's shoreline. Bottom barrier or screen projects covering a larger area shall require prior authorization by the department. Bottom barrier or screen and anchor material consisting of biodegradable material may be left in place. Bottom barrier or screen and anchor material that is not biodegradable shall be completely removed within two years of placement to encourage recolonization of aquatic beneficial plants unless otherwise approved by the department.

(3) To remove or control aquatic noxious weeds and aquatic beneficial plants such that an access is maintained for boating or swimming, bottom barrier or screen and anchor material that is not biodegradable may be installed along a maximum length of ten linear feet of the applicant's shoreline. Bottom barrier or screen projects for boating and swimming access which cover a larger area shall require prior authorization by the department.

(4) Bottom barrier or screen material shall be securely anchored with pea-gravel filled bags, rock or similar mechanism to prevent billowing and movement offsite.

(5) Bottom barrier or screen and anchors shall be regularly maintained while in place to ensure the barrier or screen and anchors are functioning properly. Barriers or screens that have moved or are billowing shall immediately be securely reinstalled or removed from the watercourse.

(6) Existing fish habitat components such as logs, stumps, and large boulders may be relocated within the watercourse if necessary to properly install the bottom barrier or screen. These habitat components shall not be removed from the watercourse.

(7) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(8) Every effort shall be made to avoid the spread of plant fragments through equipment contamination. Persons or firms using any equipment to remove or control aquatic plants shall thoroughly remove and properly dispose of all viable residual plants and viable plant parts from the equipment prior to the equipment's use in a body of water.

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NEW SECTION

WAC 220-110-334 Weed rolling. A copy of the current Aquatic Plants and Fish pamphlet available from the department shall serve as an HPA, unless otherwise indicated, and be on the job site at all times. Weed rollers are best used when control of all aquatic plants is desired. Weed rolling projects may incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to weed rolling projects for both aquatic noxious weed or aquatic beneficial plant control or removal except where otherwise indicated:

(1) Due to potential impacts to sockeye spawning areas, prior authorization by the department shall be required for activities in Baker Lake and Lakes Osoyoos, Ozette, Pleasant, Quinault, Sammamish, Washington, and Wenatchee. Authorization may or may not be given for the activity, and if given, may require mitigation through a written agreement between the applicant and the department for impacts by the activity to the spawning area.

(2) Weed rollers shall not be used to remove an aquatic noxious weed early infestation.

(3) Weed rollers shall not cover an area of more than two thousand five hundred square feet. Weed roller projects covering a greater area shall require prior authorization by the department.

(4) Removal of detached plants and plant fragments from the watercourse shall be as complete as possible. This is especially important when removing or controlling aquatic noxious weeds. Detached plants and plant fragments shall be disposed of at an upland site so as not to reenter state waters.

(5) Work shall be conducted to minimize the release of sediment and sediment-laden water from the project site.

(6) Extreme care shall be taken to ensure that no petroleum products, hydraulic fluid or other deleterious material from equipment used are allowed to enter or leach into the watercourse.

(7) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(8) Existing fish habitat components such as logs, stumps, and large boulders may be relocated within the watercourse if necessary to properly install the weed roller. These habitat components shall not be removed from the watercourse.

(9) Every effort shall be made to avoid the spread of plant fragments through equipment contamination. Persons or firms using any equipment to remove or control aquatic plants shall thoroughly remove and properly dispose of all viable residual plants and viable plant parts from the equipment prior to the equipment's use in a body of water.

(10) After prior authorization by the department, weed rollers may be used in fish spawning areas.

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NEW SECTION

WAC 220-110-335 Mechanical harvesting and cutting. A copy of the current Aquatic Plants and Fish pamphlet available from the department shall serve as an HPA, unless otherwise indicated, and be on the job site at all times. Mechanical harvesting and cutting projects may incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to mechanical harvesting and cutting projects for both aquatic noxious weed or aquatic beneficial plant control or removal except where otherwise indicated:

(1) Mechanical harvesters and cutters shall not be used to remove an aquatic noxious weed early infestation.

(2) If the intent of the project is to remove aquatic beneficial plants, prior authorization by the department shall be required.

(3) Removal of detached plants and plant fragments from the watercourse shall be as complete as possible. This is especially important when removing or controlling aquatic noxious weeds. Detached plants and plant fragments shall be disposed of at an upland site so as not to reenter state waters.

(4) Extreme care shall be taken to ensure that no petroleum products, hydraulic fluid or other deleterious material from equipment used are allowed to enter or leach into the watercourse. Equipment shall be well-maintained and where practicable, food-grade oil in the hydraulic systems should be used.

(5) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(6) Existing fish habitat components such as logs, stumps, and large boulders may be relocated within the watercourse if necessary to operate the equipment. These habitat components shall not be removed from the watercourse.

(7) Mechanical harvester and cutter operations shall only be conducted in waters of sufficient depth to avoid bottom contact with the cutter blades.

(8) Mechanical harvesters and cutters shall be operated at all times to cause the least adverse impact to fish life.

(9) Fish life that may be entrained in the cut vegetation during mechanical harvester operations shall be immediately and safely returned to the watercourse.

(10) Every effort shall be made to avoid the spread of plant fragments through equipment contamination. Persons or firms using any equipment to remove or control aquatic plants shall thoroughly remove and properly dispose of all viable residual plants and viable plant parts from the equipment prior to the equipment's use in a body of water.

(11) Alteration or disturbance of the bank and bank vegetation shall be limited to that necessary to conduct the project. All disturbed areas shall be protected from erosion, within seven calendar days of completion of the project, using vegetation or other means. The banks shall be revegetated within one year with native or other approved woody species. Vegetative cuttings shall be planted at a maximum interval of three feet (on center), and maintained as necessary for three years to ensure eighty percent survival. Where proposed, planting densities and maintenance requirements for rooted stock will be determined on a site-specific basis. After authorization by the department, the requirement to plant woody vegetation may be waived for areas where the potential for natural revegetation is adequate, or where other engineering or safety factors preclude them.

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NEW SECTION

WAC 220-110-336 Rotovation. An individual HPA shall be required for rotovation projects. Rotovation projects shall incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to rotovation projects for both aquatic noxious weed or aquatic beneficial plant control or removal except where otherwise indicated:

(1) Rotovators shall not be used to remove an aquatic noxious weed early infestation.

(2) Removal of detached plants and plant fragments from the watercourse shall be as complete as possible. This is especially important when removing aquatic noxious weeds. Detached plants and plant fragments shall be disposed of at an upland site so as not to reenter state waters.

(3) Extreme care shall be taken to ensure that no petroleum products, hydraulic fluid or other deleterious material from equipment used are allowed to enter or leach into the watercourse. Rotovators shall be well-maintained and where practicable, food-grade oil in the hydraulic systems should be used.

(4) If at any time, as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(5) Existing fish habitat components such as logs, stumps, and large boulders may be relocated within the watercourse if necessary to operate the equipment. These habitat components shall not be removed from the watercourse.

(6) Rotovators shall be operated at all times to cause the least adverse impact to fish life.

(7) Every effort shall be made to avoid the spread of plant fragments through equipment contamination. Persons or firms using any equipment to remove or control aquatic plants shall thoroughly remove and properly dispose of all viable residual plants and viable plant parts from the equipment prior to the equipment's use in a body of water.

(8) Alteration or disturbance of the bank and bank vegetation shall be limited to that necessary to conduct the project. All disturbed areas shall be protected from erosion, within seven calendar days of completion of the project, using vegetation or other means. The banks shall be revegetated within one year with native or other approved woody species. Vegetative cuttings shall be planted at a maximum interval of three feet (on center), and maintained as necessary for three years to ensure eighty percent survival. Where proposed, planting densities and maintenance requirements for rooted stock will be determined on a site-specific basis. After authorization by the department, the requirement to plant woody vegetation may be waived for areas where the potential for natural revegetation is adequate, or where other engineering or safety factors preclude them.

(9) Rotovation shall not occur in fish spawning areas unless approved by the department.

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NEW SECTION

WAC 220-110-337 Aquatic plant dredging. A copy of the current Aquatic Plants and Fish pamphlet available from the department shall serve as an HPA for diver-operated dredging only, unless otherwise indicated, and shall be on the job site at all times. All other dredging for aquatic plant control or removal shall require an individual HPA. Dredging projects may incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to dredging projects for both aquatic noxious weed or aquatic beneficial plant control or removal except where otherwise indicated:

(1) All aquatic plant dredging projects.

(a) Due to potential impacts to sockeye spawning areas, prior authorization by the department shall be required for activities in Baker Lake and Lakes Osoyoos, Ozette, Pleasant, Quinault, Sammamish, Washington, and Wenatchee. Authorization may or may not be given for the activity, and if given, may require mitigation through a written agreement between the applicant and the department for impacts by the activity to the spawning area.

(b) Extreme care shall be taken to ensure that no petroleum products, hydraulic fluid or other deleterious material from equipment used are allowed to enter or leach into the watercourse. Equipment shall be well-maintained and where practicable, food-grade oil in the hydraulic systems should be used.

(c) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(d) Existing fish habitat components such as logs, stumps, and large boulders may be relocated within the watercourse if necessary to operate the equipment. These habitat components shall not be removed from the watercourse.

(e) Dredging shall be conducted at all times with dredge types and methods that cause the least adverse impact to fish life.

(f) Every effort shall be made to avoid the spread of plant fragments through equipment contamination. Persons or firms using any equipment to remove or control aquatic plants shall thoroughly remove and properly dispose of all viable residual plants and viable plant parts from the equipment prior to the equipment's use in a body of water.

(g) Work shall be conducted to minimize the release of sediment and sediment-laden water from the project site.

(h) Upon completion of the dredging, the bed shall not contain pits, potholes, or large depressions to avoid stranding of fish.

(i) Alteration or disturbance of the bank and bank vegetation shall be limited to that necessary to conduct the project. All disturbed areas shall be protected from erosion, within seven calendar days of completion of the project, using vegetation or other means. The banks shall be revegetated within one year with native or other approved woody species. Vegetative cuttings shall be planted at a maximum interval of three feet (on center), and maintained as necessary for three years to ensure eighty percent survival. Where proposed, planting densities and maintenance requirements for rooted stock will be determined on a site-specific basis. After prior authorization by the department, the requirement to plant woody vegetation may be waived for areas where the potential for natural revegetation is adequate, or where other engineering or safety factors preclude them.

(2) Diver-operated dredging only. The use of diver-operated dredging is useful to remove an aquatic noxious weed early infestation, and to assist in long-term maintenance following control or removal via other methods.

(a) Removal of plants and plant fragments from the watercourse shall be as complete as possible. This is especially important when removing or controlling aquatic noxious weeds. Plants and plant fragments shall be removed from the dredge slurry prior to its return to the watercourse. Dredged bed materials, including detached plants and plant fragments, shall be disposed of at an upland disposal site so as not to reenter state waters.

(b) After prior authorization by the department, diver-operated dredging may be conducted in fish spawning areas.

(c) An hydraulic dredge shall only be operated with the intake at or below the surface of the material being removed. The intake shall only be raised a maximum of three feet above the bed for brief periods of purging or flushing the intake system.

(3) Dredging other than diver-operated dredging. Except for diver-operated dredging, an individual HPA shall be required for all dredging for aquatic plant control or removal projects.

(a) Dragline and clamshell dredges shall not be used to remove an aquatic noxious weed early infestation.

(b) Removal of plants and plant fragments from the watercourse shall be as complete as possible. This is especially important when removing or controlling aquatic noxious weeds. Dredged bed materials, including detached plants and plant fragments, shall be disposed of at an upland disposal site so as not to reenter state waters.

(c) Dredging shall not be conducted in fish spawning areas unless approved by the department.

(d) An hydraulic dredge shall only be operated with the intake at or below the surface of the material being removed. The intake shall only be raised a maximum of three feet above the bed for brief periods of purging or flushing the intake system.

(e) If a dragline or clamshell is used, it shall be operated to minimize turbidity. During excavation, each pass with the clamshell or dragline bucket shall be complete. Dredged material shall not be stockpiled waterward of the ordinary high water line.

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NEW SECTION

WAC 220-110-338 Water level manipulation. An individual HPA shall be required for water level manipulation. The use of water level manipulations (drawdowns) to remove or control aquatic noxious weeds or aquatic beneficial plants by exposing plants and root systems to extreme temperature and moisture conditions may be appropriate under specific circumstances. Accurate plant identification is important to ensuring any degree of success. Water level manipulation projects shall incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to water level manipulation projects for both aquatic noxious weed or aquatic beneficial plant control or removal except where otherwise indicated:

(1) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(2) Water level manipulation shall be conducted to cause the least adverse impact to fish life.

(3) Water level manipulation shall occur gradually and in a controlled manner to prevent a sudden release of impounded water or sediments which may result in downstream bed and bank degradation, sedimentation, or flooding. Water levels shall be drawndown and brought back up at rates predetermined in consultation with and approved by the department. Instream flow requirements shall be maintained as water levels are brought back up.

(4) Disturbed bank areas shall be protected from erosion. Erosion control methods may include, but are not limited to, filter fabric and immediate mulching of exposed areas. Riprap, or other bank hardening/armoring method, shall not be allowed.

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