WSR 98-21-071

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[Filed October 21, 1998, 10:13 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-07-092.

Title of Rule: Small scale prospecting and mining.

Purpose: Provide general rules for small scale prospecting and mining, and other prospecting and mining.

Statutory Authority for Adoption: RCW 75.08.080, 75.20.100, 75.20.330.

Statute Being Implemented: RCW 75.20.100, 75.20.330.

Summary: The Department of Fish and Wildlife is adopting rules that will apply to small scale prospecting and mining and to other mineral prospecting activities that use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state. Rule adoption for small scale prospecting and mining is required by SHB 1565 (RCW 75.20.330) passed by the 1997 Washington state legislature. Rule adoption for other prospecting activities is being accomplished to update rules under RCW 75.20.100. Following rule adoption, a new Gold and Fish pamphlet describing the rules and containing other information related to mineral prospecting and mining will be published. The pamphlet will serve as the hydraulic project approval (HPA) for those activities described in it. The proposed rules and the pamphlet will apply to all waters of Washington. Prospectors wishing to conduct operations outside of the methods, locations, or timing allowed in the proposed rules can submit oral or written application to the department. Those proposed projects that can be conducted with protections for fish life will be issued written supplemental approvals to the pamphlet or written hydraulic project approvals.

Reasons Supporting Proposal: The 1997 legislature ordered the department to adopt rules under which small scale prospecting and mining would not require written approval provided the activity was conducted in accordance with provisions established by the department. The department was also ordered to revise and distribute the Gold and Fish pamphlet to describe methods of mineral prospecting that are consistent with the rules. Existing rules for other mineral prospecting activities are outdated due to a number of factors including advances in the technology of prospecting equipment and new biological information regarding species present in certain waters of the state and the effect of prospecting activities on them. New rules governing these activities can best be developed at this time and incorporated in the Gold and Fish pamphlet.

Name of Agency Personnel Responsible for Drafting: Pat Chapman, 1111 Washington Street, Olympia, (360) 902-2571; Implementation: Elyse Kane, 1111 Washington Street, Olympia, (360) 902-2402; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

Name of Proponent: Washington Fish and Wildlife Commission, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: None.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rules will provide requirements for conducting "small scale prospecting and mining" activities and for other mineral prospecting activities that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state. Included in the rules are provisions detailing acceptable methods, timing and locations for these projects to occur. These rules will be described in a pamphlet called "Gold and Fish," which will also contain other general information such as other agencies which regulate aspects of prospecting and mining, and best management practices for prospecting and mining. Small scale prospecting and mining and other mineral prospecting activities shall be required to be conducted according to the proposed rules, but application for exceptions to these rules will be accepted by the Department of Fish and Wildlife. Those proposed projects that can be conducted with protections for fish life will be issued written supplemental approvals to the pamphlet or written hydraulic project approvals. Applicants who are dissatisfied with the Department's decision regarding their application for a written HPA will have appeal procedures available to them.

The proposed rules will allow for small scale mineral prospecting and mining and other mineral prospecting activities without requiring individual hydraulic project approval. Additionally the rules will protect fish life from the detrimental impacts of these activities. The effect will be to reduce the number of hydraulic project approvals processed by the department, and make it easier and quicker for prospectors to obtain approval to conduct operations.

Proposal Changes the Following Existing Rules: Amends the following sections: Definitions, Pamphlet hydraulic project approvals--Procedures, Mineral prospecting (panning), Informal appeal of adverse administrative decisions, Formal appeal of administrative decisions.

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

Small Business Economic Impact Statement

Mineral Prospecting and Placer Mining Rules: WAC 220-110-020, 220-110-031, 220-110-200, 220-110-201, 220-110-202, 220-110-203, 220-110-204, 220-110-205, 220-110-206, 220-110-207, 220-110-208, 220-110-209, 220-110-340, and 220-110-350.

1. Description of Reporting, Recordkeeping and Other Compliance Measures Required by the Proposed Rules: Permittees conducting work through the authority of the Gold and Fish pamphlet are not required to submit an application or provide a report of their activities. After obtaining a pamphlet from Washington Department of Fish and Wildlife, a local vendor or prospecting club, they may conduct their activity. Permittees desiring to conduct work at locations, at times or by methods other than described under the rules in the Gold and Fish pamphlet are required to obtain written approval by one of two means. They may call the area habitat biologist for the area if requesting deviations in location or timing of work from that listed in the pamphlet. If requesting approval for use of different equipment than that authorized in the rule and described in the pamphlet, they must submit a written application to the department. Written notification of acceptance of the verbal or written application is required before the requested work can be conducted.

2. Professional Services Required for Compliance with Proposed Rules: None.

3. Costs of Compliance for Businesses Required to Comply, Including Costs of Equipment, Supplies, Labor and Increased Administrative Costs: There may be an unknown amount of increased cost to some prospectors for replacement of dredges which no longer meet the size restrictions required by the new rules. Existing rules allow the use of four classes of dredges ranging from 2.5 inch to 8 inch dredges. Proposed rules allow for a maximum dredge size of 4 inches. Prospectors with larger existing dredges will have to either put reducers in their existing equipment (at minimal cost) or will have to purchase smaller dredges (at significant cost) to be in compliance with the proposed rules. Alternatively, they may submit an application for exception to the proposed rules and receive written approval if fish life can be protected.

Smaller dredges are capable of moving and processing less material than larger equipment. Therefore, prospectors switching to smaller dredges will require more time and labor to process equivalent amounts of gold. Prospectors involved in the process of rule development have stated that relatively few prospectors own and operate the larger dredges since dredges larger than 4 inches are primarily for commercial operations and require more than one individual to operate.

4. Will Compliance Cause Businesses to Lose Sales or Revenue? No. While allowable work times allowed through authority of the Gold and Fish pamphlet in many cases will be reduced from those previously allowed, removal of the requirement for most prospectors to obtain written authorization prior to prospecting will make it easier for most people to prospect with short notice. There will be no time lost to the prospector while waiting up to forty-five days for written authorization. This time can be spent prospecting for gold.

Removing the requirement of obtaining written authorization may result in more people participating in this activity and purchasing equipment since they will not have to wait up to forty-five days to receive approval. Local vendors will be able to distribute pamphlets on site and prospectors can immediately use equipment purchased.

Commercial prospectors and miners affected by the new rules may have significant reduction in opportunity because the equipment sizes authorized are more commonly used by "recreational" prospectors. The amount of gold recovered and sold could therefore be reduced below current levels if prospecting and mining is conducted strictly through authority of the pamphlet. Most commercial operations would likely request a written permit, however, (as they currently do) and if approved, their operations would not be reduced.

5. Comparison of Costs of Compliance for Small Businesses with the 10% of Businesses that are the Largest Businesses Required to Comply with the Proposed Rule: To the extent that equipment will need to be replaced, the costs may be greater for large businesses since they are more likely to be operating the larger equipment no longer authorized by the proposed rules. Small operations using one to two workers likely use equipment authorized by the proposed rules since it is sized for operation by few people. A large business may have greater financial resources to absorb these costs, however.

Businesses may have to increase staffing to be able to process equivalent amounts of aggregate as currently allowed to recover enough gold to cover operating costs. Large businesses likely could absorb these costs easier than small businesses.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses: Gold and Fish pamphlets will be available for distribution at no charge by suppliers and others. Distribution of the pamphlet by suppliers may increase the number of customers to a business resulting in increased sales. Applicants may submit a verbal or written application for exception to the proposed rules and receive written approval if fish life can be protected.

Following comment received from prospectors during the rule development process several measures were added to the proposed rules which will reduce costs to small businesses. These include the addition of Class 0 activities which allow prospecting with a pan year-round to enable prospectors to determine where they may want to work when the waters they are interested in open. Therefore, they do not have to spend valuable work time prospecting. Additionally, dredge intake hose size was increased to be consistent with commercially available equipment. This eliminates the need for expensive retrofitting of equipment. Other restrictions on when workers on site can be replaced were modified to allow individual replacement rather than replacement of the whole team of workers. Allowable instream worktimes have been relaxed which will enable prospectors to work longer hours. Requirements about moving rock while prospecting were relaxed which will make dredging more feasible.

7. Description of How the Agency will Involve Small Business in the Development of the Rule: These rules were developed in cooperation with the mineral prospecting community and other interested parties. More than one-third of the participants on the workgroup which developed the rules were directly involved in mineral prospecting. As least two of these were suppliers of mineral prospecting equipment. Six workgroup meetings were conducted between December 1997 and June 1998 in which these rules were discussed and debated. Preliminary draft rules were sent to an extensive mailing list and posted on the agency internet web site and comments solicited. Five public workshops were held following publication of preliminary draft rules and notification through mailings and news releases. Comments were received and appropriate changes to the draft rules were made. Staff attended numerous meetings of various prospecting clubs to explain the rule-making process and to receive comments.

8. List of Industries Required to Comply with this Rule: Mineral prospectors and placer miners.

A copy of the statement may be obtained by writing to Washington Department of Fish and Wildlife, Habitat and Lands Services Program, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2534, fax (360) 902-2946.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. The Department of Fish and Wildlife will complete a significant legislative rule analysis and place a copy in the rule-making file, as required.

Hearing Location: DoubleTree Hotel, 18740 Pacific Highway South, Seattle, WA 98918-4234, on December 4, 1998, at 8 a.m.

Assistance for Persons with Disabilities: Contact Debbie Nelson by December 1, 1998, TDD (360) 902-2207, or (360) 902-2267.

Submit Written Comments to: Washington Department of Fish and Wildlife, Patrick Chapman, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2571 by November 24, 1998.

Date of Intended Adoption: December 4, 1998.

October 21, 1998

Evan Jacoby

Rules Coordinator

OTS-2554.3

AMENDATORY SECTION (Amending Order 97-84, filed 6/4/97, effective 7/5/97)

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

(1) "Aggregate" means a mixture of minerals separable by mechanical or physical means.

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

(((3))) (4) "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))) (5) "Bank" means any land surface above the ordinary high water line that adjoins a body of water and contains it except during floods. Bank also includes all land surfaces of islands above the ordinary high water line that adjoin a water body and that are below the flood elevation of their surrounding water body.

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

(((5))) (7) "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.

(((6))) (8) "Bed materials" means ((natural-occurring)) naturally occurring material, including, but not limited to, gravel, cobble, rock, rubble, sand, mud and aquatic plants, found in the beds of state waters. Bed materials may be found in deposits or bars above the wetted perimeter of water bodies.

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

(((8))) (10) "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.

(((9))) (11) "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))) (12) "Boulder" means a stream substrate particle larger than ten inches in diameter.

(13) "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.

(((11))) (14) "Concentrator" means a device used to physically or mechanically separate and enrich the valuable mineral content of aggregate. Pans, sluice boxes and mini-rocker boxes are examples of concentrators.

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

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

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

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

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

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

(((17))) (21) "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))) (22) "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.

(((19))) (23) "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))) (24) "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.

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

(((22))) (26) "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)) banks.

(((23))) (27) "Excavation site" means the exact location from which aggregate is being removed for the processing and recovery of minerals.

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

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

(((25))) (30) "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.

(((26))) (31) "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.

(((27))) (32) "Fishway" means any facility or device that is designed to enable fish to effectively pass around or through an obstruction without undue stress or delay.

(33) "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.

(((28))) (34) "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.

(((29))) (35) "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.

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

(((31))) (37) "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))) (38) "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.)) Some examples of hand-held tools are shovels, rakes, hammers, pry bars and cable winches.

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

(((34))) (40) "Highbanker" means a stationary concentrator capable of being operated outside the wetted perimeter of the water body from which water is removed, and which is used to separate gold and other minerals from aggregate with the use of water supplied by hand or pumping, and consisting of a sluice box, hopper, and water supply. Aggregate is supplied to the highbanker by means other than suction dredging. This definition excludes mini-rocker boxes.

(41) "Highbanking" means the use of a highbanker for the recovery of minerals.

(42) "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.

(((35))) (43) "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.

(((36))) (44) "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) The following printed pamphlet approvals and any supplemental approvals to them. See "supplemental approval":

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

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

(((e))) (iii) 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.

(((37))) (45) "Hydraulicing" means the use of water spray or water under pressure to dislodge minerals and other material.

(46) "Job site" means the space of ground including and immediately adjacent to the area where work is conducted under the authority of a hydraulic project approval. For mineral prospecting and placer mining projects, the job site includes the excavation site.

(47) "Lake" means any natural or impounded body of standing freshwater, except impoundments of the Columbia and Snake rivers.

(48) "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.

(((38))) (49) "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.

(((39))) (50) "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.

(((40))) (51) "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))) (52) "Mineral prospecting equipment" means any natural or manufactured device, implement, or animal other than the human body used in any aspect of prospecting for or recovering minerals. Classifications of mineral prospecting equipment are as follows:

(a) Class 0 - nonmotorized pans.

(b) Class I.

(i) Pans.

(ii) Nonmotorized sluice boxes, concentrators and mini-rocker boxes with a riffle area not exceeding ten square feet, and not exceeding fifty percent of the width of the wetted perimeter of the stream.

(c) Class II.

(i) Suction dredges with a maximum nozzle size of four inches inside diameter.

(ii) Highbankers or suction dredge/highbanker combinations with a maximum water intake size of two and one-half inches inside diameter, when operated wholly below the ordinary high water line.

(d) Class III.

(i) Highbankers supplied with water from a pump with a maximum water intake size of two and one-half inches inside diameter, when used to process aggregate at locations two hundred feet or greater landward of the ordinary high water line.

(ii) Suction dredge/highbanker combinations supplied with water from a pump with a maximum water intake size of two and one-half inches inside diameter, when used to process aggregate at locations two hundred feet or greater landward of the ordinary high water line.

(iii) Other concentrators supplied with water from a pump with a maximum water intake size of two and one-half inches inside diameter, when used to process aggregate at locations two hundred feet or greater landward of the ordinary high water line.

(53) "Mini-rocker box" means a nonmotorized concentrator operated with a rocking motion and consisting of a hopper attached to a cradle and a sluice box with a riffle area not exceeding ten square feet. The mini-rocker box shall only be supplied with water by hand and be capable of being carried by one individual. A mini-rocker box shall not be considered a highbanker.

(54) "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.

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

(((43))) (56) "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.

(((44))) (57) "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.

(((45))) (58) "Pan" means the following equipment used to separate gold or other metal from aggregate by washing:

(a) An open, metal or plastic dish operated by hand; or

(b) A motorized rotating open, metal or plastic dish without pumped or gravity-fed water supplies.

(59) "Panning" means the use of a pan to wash aggregate.

(60) "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.

(((46))) (61) "Placer" means a glacial or alluvial deposit of gravel or sand containing eroded particles of minerals.

(62) "Pool" means a portion of the stream with reduced current velocity, often with water deeper than the surrounding areas.

(63) "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.

(((47))) (64) "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))) (65) "Riffle" means the bottom of a concentrator containing a series of interstices or grooves to catch and retain a mineral such as gold.

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

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

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

(((51))) (69) "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.

(((52))) (70) "Sluice box" means a trough equipped with riffles across its bottom, used to recover gold and other minerals with the use of water.

(71) "Sluicing" means the use of a sluice box for the recovery of gold and other minerals.

(72) "Small scale mineral prospecting equipment" encompasses the equipment included in "mineral prospecting equipment, Class I."

(73) "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))) (74) "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.

(((54))) (75) "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)) banks using rock or woody material, or placement of jetties or groins), gravel removal or erosion control.

(((55))) (76) "Suction dredge" means a machine equipped with an internal combustion engine or electric motor powering a water pump which is used to move submerged bed materials by means of hydraulic suction. These bed materials are processed through an attached sluice box for the recovery of gold and other minerals.

(77) "Suction dredging" means the use of a suction dredge for the recovery of gold and other minerals.

(78) "Supplemental approval" means a written addendum issued by the department to a pamphlet HPA for approved exceptions to conditions of that pamphlet HPA or for any additional authorization by the department when required by a pamphlet HPA. See "hydraulic project approval."

(79) "Tailings" means waste material remaining after processing aggregate for minerals.

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

(((56))) (81) "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.

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

(((58))) (83) "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.

(((59))) (84) "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.

(((60))) (85) "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.

(((61))) (86) "Water type" means water categories as defined in WAC 222-16-030 of the forest practice rules and regulations.

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

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

[Statutory Authority: RCW 75.08.080. 97-13-001 (Order 97-84), § 220-110-020, filed 6/4/97, effective 7/5/97; 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.]

AMENDATORY SECTION (Amending Order 97-84, filed 6/4/97, effective 7/5/97)

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))) (44), 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) Supplemental approvals to the pamphlet HPA as defined in WAC 220-110-020(44) and 220-110-020(78) shall require written authorization by the department.

(3) Applications submitted to the department for supplemental approvals may be verbal or written.

(a) Applications shall specify the requested exception or request for additional authorization and shall include the applicant's name, address and phone number. Written applications shall be signed and dated.

(b) The department shall grant or deny approval within forty-five calendar days of the receipt of a request for supplemental approval.

(4) The supplemental approval shall be attached to the pamphlet HPA and shall be on the job site when work is being conducted and shall be immediately available for inspection.

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

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

(((4))) (7) 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))) (8) 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.

[Statutory Authority: RCW 75.08.080. 97-13-001 (Order 97-84), § 220-110-031, filed 6/4/97, effective 7/5/97.]

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

WAC 220-110-200  Mineral prospecting (((panning))) technical provisions. ((A copy of the current Gold and Fish Pamphlet available from the department shall be on the job site at all times and shall serve as an HPA. The following technical provisions are found in the pamphlet and apply to mineral prospecting (panning) projects:

(1) Gold pans, mini-rocker boxes, and nonmotorized sluice boxes are allowed. The riffle area of the sluice box shall not exceed one-foot wide by three feet long, and shall not exceed fifty percent of the width of the wetted perimeter of the stream.

(2) All work shall be performed by hand or with hand-held tools only.

(3) There shall be no disturbance of graveled spawning areas.

(4) There shall be no streambank excavation.

(5) There shall be no disturbance of rooted or embedded woody plants (trees, shrubs, etc.) waterward of the ordinary high water line.

(6) Materials too large to be moved by hand or hand-held tools shall not be disturbed.

(7) There shall be no damming of the flowing stream.

(8) All pits, furrows, potholes and diversions shall be filled, leveled, or removed prior to leaving the project site, to prevent fish entrapment.

(9) No motorized, tracked, or wheeled vehicles shall be allowed within the wetted perimeter of the stream.

(10) Siltation resulting from this project, which the department considers damaging to fish life, may cause operations to be terminated and the HPA cancelled.

(11) This HPA does not authorize entry onto private property or removal of minerals from an existing mining claim on federal property or on property covered under mineral prospecting leases or mining contracts issued by the department of natural resources. It is the applicant's responsibility to contact the bureau of land management or department of natural resources to determine if a claim, prospecting lease, or mining contract has been issued. The office of state historic preservation should be contacted to determine if there are any restrictions regarding culturally sensitive areas in the vicinity.)) WAC 220-110-201 through 220-110-205 set forth technical provisions that shall apply to mineral prospecting and placer mining projects as necessary to protect fish life. Additional special provisions may be included in written HPAs as necessary to address site-specific conditions. Written HPAs shall also have specific time limitations on project activities to protect fish life. Timing limitations for projects conducted under authority of the Gold and Fish pamphlet are found in WAC 220-110-206 through 220-110-209. Saltwater provisions may be applied to tidally influenced areas upstream of river mouths and the mainstem Columbia River downstream of Bonneville Dam where applicable in written HPAs.

[Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), § 220-110-200, filed 11/14/94, effective 12/15/94; 87-15-086 (Order 87-48), § 220-110-200, filed 7/20/87. Statutory Authority: RCW 75.20.100 and 75.08.080. 83-09-019 (Order 83-25), § 220-110-200, filed 4/13/83.]

NEW SECTION

WAC 220-110-201  Common mineral prospecting technical provisions. A copy of the current Gold and Fish pamphlet available from the department shall serve as an HPA, unless otherwise indicated, and be on the job site at all times. Mineral prospecting and placer mining projects authorized through a written HPA may incorporate additional mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. Project activities may be prohibited where project impacts adversely affect fish habitats for which no proven mitigation methods are available. The following technical provisions shall apply to all mineral prospecting and placer mining projects.

(1) Excavation, collection and processing of aggregate from the bed shall comply with the timing and location restrictions specified in WAC 220-110-206 through 220-110-209. Excavation, collection and processing of aggregate within the wetted perimeter shall only occur between 5:00 a.m. and 11:00 p.m.

(2) Excavation sites shall be separated by at least two hundred feet.

(3) There shall be no excavation, collection or processing of aggregate within four hundred feet of any fishway, dam or hatchery water intake.

(4) Except as specified in WAC 220-110-203, aggregate collected from outside the bed shall not be washed, sluiced, processed or deposited within two hundred feet landward of the ordinary high water line.

(5) A maximum of five individuals may collect and process aggregate from any excavation site. No more than one pit, furrow or pothole at a time shall be excavated by any one individual.

(6) Excavations shall not occur between the ordinary high water line and two hundred feet landward of the ordinary high water line. Excavations between the ordinary high water line and the toe of the bank shall not result in undercutting below the ordinary high water line or in disturbance of land surfaces above the ordinary high water line.

(7) There shall be no disturbance of live rooted vegetation of any kind. Woody debris jams and large woody material shall not be disturbed in any manner.

(8) With the exception of aggregate excavated by a suction dredge, all excavations of aggregate shall only be performed by hand or with hand-held tools. A maximum of one hand-operated cable, chain or rope winch may be used to move bed material below the ordinary high water line. Additional safety cables, chains or ropes may be attached to this material provided they do not offer a mechanical advantage and are used solely to hold material in place. The use of horses, other livestock or motorized mineral prospecting equipment, except those specifically authorized under WAC 220-110-203 through 220-110-205, is prohibited. Materials too large to be moved with a single hand-operated cable, chain or rope winch shall not be disturbed.

(9) Boulders may be moved only to facilitate collection of aggregate underneath them. Boulders shall be immediately replaced in their original location prior to working another excavation site or leaving the excavation site. Not working the excavation site for more than sixteen hours constitutes leaving the site.

(10) Only equipment, methods, locations and timing for processing aggregate specified in WAC 220-110-201 through 220-110-209 are authorized. Exceptions shall require additional authorization from the department in the form of a supplemental approval to the Gold and Fish pamphlet or a written HPA. A written HPA shall be required for exceptions in cases where "submit application" or "closed" is listed for state waters in WAC 220-110-206 through 220-110-209. Only the following exceptions may be authorized through a supplemental approval to the Gold and Fish pamphlet:

(a) Timing and location only for Class I and Class II mineral prospecting equipment.

(b) Location only for Class III mineral prospecting equipment.

(11) With the exception of sieves for classifying aggregate, mineral prospecting equipment shall not be combined in series, joined or ganged with additional mineral prospecting equipment to increase the riffle area or efficiency of mineral recovery of a single piece of mineral prospecting equipment.

(12) There shall be no damming or diversion of the flowing stream except as provided in WAC 220-110-203 (4)(d).

(13) Prior to working another excavation site or leaving the excavation site, tailings of aggregate collected from below the ordinary high water line shall be returned to the location from which the aggregate was originally collected. Sand and lighter material washed away by the streamflow during aggregate processing and tailings resulting from suction dredging may be left where processed.

(14) Except as required in subsection (13) of this section, tailings shall not be deposited in existing pools.

(15) Incubating fish eggs or fry shall not be disturbed. If fish eggs or fry are encountered during excavation of the bed, operations shall immediately cease and the department shall be notified immediately. No further excavations shall occur until all eggs and fry have emerged from the gravel. Further approval shall be required by the department prior to resuming mineral prospecting or placer mining activities in that stream.

(16) Beds containing live freshwater mussels shall not be disturbed. If live mussels are encountered during excavation of the bed, operations shall immediately cease and shall be relocated a minimum of two hundred feet from them.

(17) All pits, furrows, tailing piles, and potholes created during excavation or processing of aggregate shall be leveled or refilled with bed materials or tailings prior to working another excavation site or leaving the excavation site. Not working the excavation site for more than sixteen hours constitutes leaving the site. No more than one pit, furrow or pothole at a time shall be excavated.

(18) Fish entrapped within pits, furrows or potholes created during excavation or processing of aggregate shall immediately be safely collected and returned to flowing waters and the pits, furrows or potholes leveled or filled.

(19) At no time shall mining or prospecting activity create a blockage or hindrance to either the upstream or downstream passage of fish.

(20) 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. Work shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.

(21) No motorized, tracked, or wheeled vehicles shall be:

(a) Operated or allowed below the ordinary high water line of the stream; or

(b) Be operated so as to affect the bed or flow of waters of the state in any way.

(22) Entry onto private property or removal of minerals from an existing mining claim or state-owned lands is not authorized. The permittee is responsible for determining land ownership, land status (i.e., open to entry under the mining laws) and the status and ownership of any mining claims.

(23) Mercury and other hazardous materials shall not be used on the job site for amalgamating minerals.

(24) Mercury, lead and other hazardous materials removed from aggregate or collected in concentrators during processing of aggregate shall not be returned to waters of the state and shall be disposed of as specified by the department of ecology. Contact the department of ecology for direction on disposal.

(25) Once mining or prospecting at a job site is completed, or mining or prospecting is not conducted at the job site for more than one week, the job site shall be restored to preproject conditions, all disturbed areas shall be protected from erosion and revegetated with native plants, and all pits, furrows, tailing piles, and potholes shall be leveled or refilled as required in subsection (17) of this section.

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NEW SECTION

WAC 220-110-202  Use of Class 0 mineral prospecting equipment. A copy of the current Gold and Fish pamphlet available from the department contains the rules which shall be followed when using Class 0 mineral prospecting equipment. A copy of the current Gold and Fish pamphlet shall be on the job site at all times. Mineral prospecting and placer mining projects authorized through a written HPA may incorporate additional mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. Project activities may be prohibited where project impacts adversely affect fish habitats for which no proven mitigation methods are available. The following technical provisions shall apply to all Class 0 mineral prospecting and placer mining projects:

(1) The common technical provisions as specified in WAC 220-110-201 and the timing and location restrictions as specified in WAC 220-110-209 shall apply to all mineral prospecting and placer mining projects conducted with Class 0 equipment.

(2) The use of a single hand-operated nonmotorized pan is authorized.

(3) Collection and processing of aggregate shall be limited to that portion of the bed above the wetted perimeter.

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NEW SECTION

WAC 220-110-203  Use of Class I mineral prospecting equipment. A copy of the current Gold and Fish pamphlet available from the department contains the rules which shall be followed when using Class I mineral prospecting equipment. A copy of the current Gold and Fish pamphlet shall be on the job site at all times. Mineral prospecting and placer mining projects authorized through a written HPA may incorporate additional mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. Project activities may be prohibited where project impacts adversely affect fish habitats for which no proven mitigation methods are available. The following technical provisions shall apply to all Class I mineral prospecting and placer mining projects:

(1) The common technical provisions as specified in WAC 220-110-201 and the timing and location restrictions as specified in WAC 220-110-206 through 220-110-207 shall apply to all mineral prospecting and placer mining projects conducted with Class I equipment.

(2) The use of only Class I mineral prospecting equipment is authorized. In addition to the use of one hand-held pan, no more than one other piece of mineral prospecting equipment shall be operated by an individual at any one time and location.

(3) There shall be no hydraulicing.

(4) The following shall also apply to all mineral prospecting and placer mining projects conducted with Class I equipment during the general or specific tributary seasons as specified in WAC 220-110-206 and 220-110-207:

(a) Collection of aggregate shall be limited to the bed, or to two hundred feet or greater landward of the ordinary high water line.

(b) Aggregate may be processed either on or above the bed: Provided, That within two hundred feet landward of the ordinary high water line:

(i) Any water used shall be fully contained in pans, buckets or similar vessels.

(ii) Wastewater resulting from processing of aggregate shall be discharged two hundred feet or greater landward of the ordinary high water line.

(iii) Settleable solids shall be removed from wastewater. Sediments resulting from collection or processing of aggregate shall be deposited so they will not enter waters of the state.

(c) Class I mineral prospecting equipment shall only be supplied with water flowing naturally in the stream, or with water collected with and contained in hand-carried buckets or pans.

(d) There shall be no damming or diversion of the flowing stream beyond that necessary to direct water into a class I sluice box as described in (c) of this subsection, and in no case shall greater than fifty percent of the width of the wetted perimeter of the stream be dammed or diverted. In no case shall the stream be directed outside of the existing wetted perimeter. The site of the dam or diversion shall be restored to its original condition prior to working another site or leaving the site.

(5) The following shall also apply to all mineral prospecting and placer mining projects conducted with Class I equipment during the special Class I season as specified in WAC 220-110-207:

(a) Collection of aggregate shall be limited to that portion of the bed above the wetted perimeter, or to two hundred feet or greater landward of the ordinary high water line.

(b) Aggregate shall be processed above the wetted perimeter: Provided, That within two hundred feet landward of the ordinary high water line:

(i) Any water used shall be fully contained in pans, buckets or similar vessels.

(ii) Wastewater resulting from processing of aggregate shall be discharged two hundred feet or greater landward of the ordinary high water line.

(iii) Settleable solids shall be removed from wastewater. Sediments resulting from collection or processing of aggregate shall be deposited so they will not enter waters of the state.

(c) Equipment shall only be supplied with water collected with and contained in hand-carried buckets or pans.

(d) There shall be no damming or diversion of the flowing stream.

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NEW SECTION

WAC 220-110-204  Use of Class II mineral prospecting equipment. A copy of the current Gold and Fish pamphlet available from the department shall serve as an HPA, unless otherwise indicated, and be on the job site at all times. Mineral prospecting and placer mining projects authorized through a written HPA may incorporate additional mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. Project activities may be prohibited where project impacts adversely affect fish habitats for which no proven mitigation methods are available. The following technical provisions shall apply to all Class II mineral prospecting and placer mining projects:

(1) The common technical provisions as specified in WAC 220-110-201 and the timing and location restrictions as specified in WAC 220-110-206 through 220-110-207 shall apply to all mineral prospecting and placer mining projects conducted with Class II equipment.

(2) With the exception of the use of one hand-held pan, the use of only Class II mineral prospecting equipment is authorized. In addition to the use of a hand-held pan, no more than one piece of mineral prospecting equipment shall be operated by an individual at any one time and location.

(3) Only one piece of Class II equipment shall be operated at any time at any excavation site.

(4) Collection of aggregate shall be limited to the bed.

(5) A nozzle greater than four inches inside diameter shall be used on a suction dredge only if a reducer or smaller diameter hose is attached to restrict the inside diameter to four inches or less.

(6) Any device used for diverting or pumping water from a fish-bearing stream shall be equipped with a fish guard to prevent passage of fish into the diversion device pursuant to RCW 75.20.040 and 77.16.220. To prevent fish from entering the system the pump intake shall be screened with either:

(a) Six one-thousandths inch (eighteen gauge) woven wire mesh with openings no greater than eighty-seven one-thousandths inches (six to fourteen mesh); or

(b) Perforated plate with openings no greater than ninety-four one-thousandths inch (three thirty-second inch); or

(c) Profile bar with openings no greater than one and seventy-five one-thousandths millimeter (sixty-nine one-hundredths inch).

The screened intake shall consist of a facility with enough surface area to ensure that the velocity through the screen is less than four-tenths feet per second, but in no case shall the surface area be less than one square foot. Screens shall be maintained to prevent injury or entrapment to juvenile fish and screens shall remain in place whenever water is withdrawn from the stream through the pump intake.

(7) There shall be no hydraulicing outside of the wetted perimeter. Hydraulicing may be conducted only for redistribution of tailings within the bed to level or fill pits, potholes or furrows, and the nozzle or jet shall be submerged at all times.

(8) Petroleum products or other harmful materials shall not enter waters of the state. Equipment shall be well maintained and inspected frequently to prevent fuel and fluid leaks.

(9) Water shall be pumped only from a water body to a suction dredge operated within the wetted perimeter or to a highbanker located below the ordinary high water line.

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NEW SECTION

WAC 220-110-205  Use of Class III mineral prospecting equipment. A copy of the current Gold and Fish pamphlet available from the department shall serve as an HPA, unless otherwise indicated, and be on the job site at all times. Mineral prospecting and placer mining projects authorized through a written HPA may incorporate additional mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. Project activities may be prohibited where project impacts adversely affect fish habitats for which no proven mitigation methods are available. The following technical provisions shall apply to all Class III mineral prospecting and placer mining projects:

(1) The common technical provisions as specified in WAC 220-110-201 and the timing and location restrictions as specified in WAC 220-110-208 shall apply to all mineral prospecting projects conducted with Class III equipment.

(2) With the exception of the use of one hand-held pan, the use of only Class III mineral prospecting equipment is authorized. In addition to the use of a hand-held pan, no more than one piece of mineral prospecting equipment shall be operated by an individual at any one time and location.

(3) Aggregate shall be collected and processed two hundred feet or greater landward of the ordinary high water line.

(4) There shall be no motorized movement of bed materials.

(5) The pump intake shall be placed in the water without moving or relocating any material in or on the bed or banks.

(6) Any device used for diverting or pumping water from a fish-bearing stream shall be equipped with a fish guard to prevent passage of fish into the diversion device pursuant to RCW 75.20.040 and 77.16.220. To prevent fish from entering the system the pump intake shall be screened with either:

(a) Six one-thousandths inch (eighteen gauge) woven wire mesh with openings no greater than eighty-seven one-thousandths inches (six to fourteen mesh); or

(b) Perforated plate with openings no greater than ninety-four one-thousandths inch (three thirty-second inch); or

(c) Profile bar with openings no greater than one and seventy-five one-thousandths millimeter (sixty-nine one-hundredths inch).

The screened intake shall consist of a facility with enough surface area to ensure that the velocity through the screen is less than four-tenths feet per second, but in no case shall the surface area be less than one square foot. Screens shall be maintained to prevent injury or entrapment to juvenile fish and screens shall remain in place whenever water is withdrawn from the stream through the pump intake.

(7) Petroleum products or other harmful materials shall not enter waters of the state. Equipment shall be well maintained and inspected frequently to prevent fuel and fluid leaks.

(8) There shall be no hydraulicing.

(9) Settleable solids shall be removed from wastewater prior to the water reentering waters of the state. Sediments resulting from collection or processing of aggregate shall be deposited so they will not enter waters of the state.

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NEW SECTION

WAC 220-110-206  Authorized work times and watercourses for mineral prospecting and placer mining projects by specific watercourse, except the Columbia and Snake rivers, lakes, salt waters and waters within National Park boundaries using Class I and II equipment. Mineral prospecting and placer mining using Class I and II equipment pursuant to WAC 220-110-203 and 220-110-204 shall only occur in watercourses and times specified in the following table:

(1) The general work time for a county applies to all streams within that county, unless otherwise indicated under specific stream and tributary work times.

(2) The work time for a listed stream applies to all its tributaries, unless otherwise indicated. Some streams flow through multiple counties. Check the listing for the county in which mineral prospecting or placer mining is to be conducted to determine the work time for that stream.

(3) Where a tributary is listed as a boundary, that boundary shall be the line perpendicular to the receiving stream that is projected from the most upstream point of the tributary mouth to the opposite bank of the receiving stream. (See Figure 1)

Figure 1. Stream boundary line

(4) Mineral prospecting and placer mining within two hundred feet landward of the ordinary high water line in state waters listed as "submit application" or "closed" is not authorized under the Gold and Fish pamphlet. Site review and a written HPA is required for these state waters.

AUTHORIZED WORK TIMES FOR MINERAL PROSPECTING AND PLACER MINING USING CLASS I AND II EQUIPMENT

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NEW SECTION

WAC 220-110-207  Authorized work times and watercourses for mineral prospecting and placer mining projects in the Columbia and Snake rivers, lakes, salt waters and waters within National Park boundaries using Class I and II equipment. Mineral prospecting and placer mining using Class I and II equipment pursuant to WAC 220-110-203 and 220-110-204 shall only occur in watercourses and times specified in the following table:

(1) Where a tributary is listed as a boundary, that boundary shall be the line perpendicular to the receiving stream and which is projected from the most upstream point of the tributary mouth to the opposite bank of the receiving stream. (See Figure 1, WAC 220-110-206.)

(2) The general and special Class I work times apply only to the watercourses listed. See WAC 220-110-206 for work times and locations for tributaries to the listed watercourses.

(3) Use of Class I equipment only is authorized for the special Class I work times.

(4) Mineral prospecting and placer mining within two hundred feet landward of the ordinary high water line in state waters listed as "submit application" or "closed" is not authorized under the Gold and Fish pamphlet. Site review and a written HPA is required for these state waters.

authorized work times for mineral prospecting and placer mining

using class i and ii equipment

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NEW SECTION

WAC 220-110-208  Authorized work times and watercourses for mineral prospecting and placer mining projects using Class III equipment only. Mineral prospecting and placer mining using Class III equipment pursuant to WAC 220-110-205 shall only occur in watercourses and times specified in the following table:

(1) The work times apply to all watercourses listed and their tributaries.

(2) Mineral prospecting and placer mining within two hundred feet landward of the ordinary high water line in streams listed as "closed" is not authorized.

authorized work times for mineral prospecting and placer mining using class iii equipment

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NEW SECTION

WAC 220-110-209  Authorized work times and watercourses for mineral prospecting and placer mining projects using Class 0 equipment only. Mineral prospecting and placer mining using Class 0 equipment pursuant to WAC 220-110-202 shall only occur in watercourses and times specified in the following table:

(1) The work times apply to all watercourses listed and their tributaries.

(2) Mineral prospecting and placer mining within two hundred feet landward of the ordinary high water line in state waters listed as "submit application" or "closed" is not authorized under the Gold and Fish pamphlet. Site review and a written HPA is required for these state waters.

authorized work times for mineral prospecting and placer mining using class 0 equipment

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

WAC 220-110-340  Informal appeal of adverse administrative decisions. It is recommended that an aggrieved party contact the local habitat biologist responsible for the hydraulic permit decision of concern prior to initiating an informal or formal appeal. Discussion of concerns with the habitat biologist often results in resolution of the problem without the need for an informal or formal appeal. The habitat biologist may request review of your concerns by his or her supervisor.

All parties are encouraged to take advantage of this informal appeal process prior to initiating a formal appeal. However, this informal appeal process is not mandatory, and a person may proceed directly to a formal appeal.

(1) The following procedures shall govern informal appeals of department actions taken pursuant to RCW 75.20.100, 75.20.103, 75.20.106, and 75.20.160. This rule does not apply to any provisions or conditions in pamphlets or supplemental approvals as defined in WAC 220-110-020 (44)(c). A person who disagrees with a provision or condition in a pamphlet HPA or its supplemental approval may apply for an individual written HPA. A person who is aggrieved or adversely affected by the following department actions may request an informal review:

(a) The denial or issuance of an HPA, or the conditions or provisions made part of an HPA; or

(b) An order imposing civil penalties.

(2) A request for an informal review shall be in writing and shall be received by the department within thirty days of the denial or issuance of an HPA or receipt of an order imposing civil penalties. The thirty-day time requirement may be stayed by the department if negotiations are occurring between the aggrieved party and the habitat biologist and/or their supervisor. Requests for informal review shall be mailed ((or delivered to the following address: Department of Fish and Wildlife, Habitat Management Division, Natural Resources Building, Fifth Floor, 1111 Washington Street, Post Office Box 43155, Olympia, Washington 98504-3155)) to Department of Fish and Wildlife, Habitat and Lands Services Program, 600 Capitol Way N., Olympia, Washington 98501-1091, or hand delivered to 1111 Washington Street S.E., Habitat and Lands Services Program, Fifth floor.

(3) Upon receipt of a written request for informal agency review, the department shall initiate a review of the agency decision. This review shall be conducted by the regulatory services division manager or the division manager's designee. Upon completion of the comprehensive review, the division manager, 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. The department shall notify the appellant in writing of the decision of the director or the director's designee.

(4) If, following this informal agency review process, the appellant still wishes to contest the agency action, a formal appeal may be initiated pursuant to WAC 220-110-350. Formal review must be requested within the time periods specified in WAC 220-110-350.

[Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), § 220-110-340, filed 11/14/94, effective 12/15/94; 87-15-086 (Order 87-48), § 220-110-340, filed 7/20/87. Statutory Authority: RCW 75.08.012, 75.08.080 and 75.20.100. 84-04-047 (Order 84-04), § 220-110-340, filed 1/30/84. Statutory Authority: RCW 75.20.100 and 75.08.080. 83-09-019 (Order 83-25), § 220-110-340, filed 4/13/83.]

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

WAC 220-110-350  Formal appeal of administrative decisions. (1) The following procedures shall govern formal appeals of department actions taken pursuant to RCW 75.20.100 or 75.20.106. This rule does not apply to any provisions or conditions in pamphlets or supplemental approvals as defined in WAC 220-110-020 (44)(c). A person who disagrees with a provision or condition in a pamphlet HPA or its supplemental approval may apply for an individual written HPA. This rule does not apply to an appeal in which a person contests the denial, conditioning or issuance of an HPA issued pursuant to RCW 75.20.103 or 75.20.160, which shall be heard by the hydraulic appeals board. A person who is aggrieved or adversely affected by the following department actions may request a formal appeal:

(a) The denial or issuance of an HPA, or the conditions or provisions made part of an HPA;

(b) An order imposing civil penalties; or

(c) Any other "agency action" for which an adjudicative proceeding is required under the Administrative Procedure Act, chapter 34.05 RCW.

(2) As required by the Administrative Procedure Act, the department shall inform the permittee, or person subject to civil penalty or 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.

(3) A request for an appeal shall be in writing and shall be received during office hours by the department within thirty days of the agency action that is being challenged. Requests for appeal shall be mailed ((or delivered to the following address: Department of Fish and Wildlife, Habitat Management Division, Natural Resources Building, Fifth Floor, 1111 Washington Street, Post Office Box 43155, Olympia, Washington 98504-3155)) to Department of Fish and Wildlife, Habitat and Lands Services Program, 600 Capitol Way N., Olympia, Washington 98501-1091, or hand delivered to 1111 Washington Street SE, Habitat and Lands Services Program, Fifth floor. If there is no timely request for an appeal, the agency action shall be final and unappealable.

(4) 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 of the date of the department's written decision in response to the informal appeal.

(5) The written request for an appeal shall be plainly labeled as "Request for Formal Appeal" and shall contain the following:

(a) The name, address, and phone number of the person requesting the appeal;

(b) The specific agency action that the person contests; for example, denial of an HPA, a particular condition in an HPA, order imposing civil penalties, etc.;

(c) Whether the person is the permittee, landowner, resident, or other basis for the person's interest in the agency action in question;

(d) The date of denial, issuance, or condition of an HPA, if the person is contesting denial, issuance, or conditioning of an HPA;

(e) Specific relief requested; and

(f) The attorney's name, address, and phone number, if the person is represented by legal counsel.

(6) The appeal may be conducted by the director, the director's designee, or by an administrative law judge (ALJ) appointed by the office of administrative hearings. If conducted by an ALJ, the ALJ shall issue an initial order pursuant to RCW 34.05.461. The director or the director's designee shall review the initial order and enter a final order as provided by RCW 34.05.464.

(7) All hearings conducted by the director, the director's designee, or an ALJ pursuant to subsection (6) of this section, shall comply with the Administrative Procedure Act and the model rules of procedure, chapter 10-08 WAC.

[Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), § 220-110-350, filed 11/14/94, effective 12/15/94; 87-15-086 (Order 87-48), § 220-110-350, filed 7/20/87. Statutory Authority: RCW 75.08.012, 75.08.080 and 75.20.100. 84-04-047 (Order 84-04), § 220-110-350, filed 1/30/84. Statutory Authority: RCW 75.20.100 and 75.08.080. 83-09-019 (Order 83-25), § 220-110-350, filed 4/13/83.]

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 220-110-210 Mineral prospecting (sluicing).

WAC 220-110-220 Mineral prospecting (dredging).