The technical provisions in WAC 220-660-090 through ((220-660-460))220-660-450 represent common technical provisions for the protection of fish life for typical hydraulic projects proposed to the department. Implementing these provisions is necessary to minimize project-specific and cumulative impacts to fish life. These provisions reflect the current and best science, technology, and construction practices related to the protection of fish life. The department will incorporate new science and technology as it becomes available, and will allow alternative practices that provide equal or greater protection for fish life.

The technical provisions will apply to a hydraulic project when included as provisions ((on))in the hydraulic project approval (HPA). The department will review each application on an individual basis. Common technical provisions ((applicable to a specific project)) may be modified or ((deleted))omitted by the department for a specific project pursuant to WAC 220-660-070. HPAs may also have special technical provisions to address project-specific or site-specific considerations not adequately addressed by the common technical provisions. All hydraulic projects must also meet the applicable mitigation requirements in WAC 220-660-080 and any other provisions included in the HPA.

In addition to the rules in this chapter, the department has developed guidance to help applicants. This guidance reflects the department's experience and expertise with various types of hydraulic projects. Following the guidance will help ensure that a hydraulic project adequately protects fish life and will speed the department's review and decision process. ((All))Guidance documents are available on the department's website.

The following are definitions for terms used in this chapter.

(1) "Abandoning an excavation site" means not working an excavation site for ((forty-eight))48 hours or longer.

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

(3) "Aquatic beneficial plant" means all native and nonnative aquatic plants except those on the state noxious weed lists in WAC 16-750-005, 16-750-011, and 16-750-015.

(4) "Aquatic invasive species" means an invasive species of the animal kingdom with a life cycle that is at least partly dependent upon fresh, brackish, or marine waters. Examples include certain species of waterfowl, amphibians, fish, shellfish, and nutria.

(5) "Aquatic noxious weed" means an aquatic plant on the state noxious weed lists in WAC 16-750-005, 16-750-011, and 16-750-015.

(6) "Aquatic plant" means a native or nonnative emergent, submersed, partially submersed, free-floating, or floating-leaved plant species that is dependent upon fresh, brackish, or marine water ecosystems and includes all stages of development and parts.

(7) "Aquatic Plants and Fish pamphlet" means a document that details the rules for aquatic noxious weed and aquatic beneficial plant removal and control activities and that serves as the hydraulic project approval for certain plant removal and control activities in Washington state.

(8) "Artificial materials" means clean, inert materials used to construct diversion structures for mineral prospecting.

(9) "Associated human-made agricultural drainage facilities" means dikes, drains, pumps, drainage tiles, and drainage pipe made by humans that protect agricultural land.

(10) "Authorized agent" means someone who is authorized by the applicant to act on behalf of the applicant.

(11) "Bank" means any land surface landward of the ordinary high water line next to a body of water and constrains the water except during floods. The term "bank" also includes all land surfaces of islands within a body of water that are below the flood elevation of the surrounding body of water.

(12) "Bankfull width" means the width of the surface of the water at the point where water just begins to overflow into the active flood plain. In streams where there is no flood plain it is often the width of a stream or river at the dominant channel forming flow that reoccurs every one to two years.

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

(14) "Bed" means the land below (waterward of) the ordinary high water lines of state waters. This definition does not include irrigation ditches, canals, stormwater runoff devices, or other artificial watercourses except where they exist in a natural watercourse that has been artificially altered.

(15) "Bed materials" means naturally occurring materials such as gravel, cobble, rock, rubble, sand, mud, and aquatic plants that form the beds of state waters. Bed materials are also found in deposits or bars above the wetted perimeter of water bodies.

(16) "Board" means the pollution control hearings board created in chapter 43.21B RCW.

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

(18) "Boulder" means a stream substrate particle larger than ((ten))10 inches in diameter.

(19) "Bridge shadow" means the area under a bridge defined by the shadow cast by the sun. This area may not receive enough light and rain to support the plant growth needed for biotechnical bank stabilization.

(20) "Channel bed width" means the width of the bankfull channel, although bankfull may not be well defined in some channels. For those streams which are nonalluvial or do not have flood plains, the channel width must be determined using features that do not depend on a flood plain.

(21) "Chronic danger" means a condition declared by the county legislative authority in which any property, except for property located on a marine shoreline, has experienced at least two consecutive years of flooding or erosion that has damaged or has threatened to damage a major structure, water supply system, septic system, or access to any road or highway.

(22) "Chronic danger HPA" means a written hydraulic project approval issued in response to a chronic danger declaration made by a county legislative authority.

(23) "Classify" means to sort aggregate by hand or through a screen, grizzly, or similar device to remove the larger material and concentrate the remaining aggregate.

(24) "Commission" means the Washington state fish and wildlife commission.

(25) "Compensatory mitigation" means the restoration, creation, enhancement, or preservation of aquatic resources to compensate for adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.

(26) "Concentrator" means a device used to physically or mechanically separate the valuable mineral content from aggregate.

(27) "Control" of an aquatic plant means to prevent all seed production and to prevent the dispersal of all propagative parts capable of forming new plants.

(28) "County legislative authority" means ((a county commission, council, or other legislative body))the elected body in each Washington county, typically the county commission, having legal authority to enact the laws of the county. County legislative authority includes the county executive in those charter counties with an elective office of county executive, however designated. County legislative authority does not include appointed administrators or other county employees.

(29) "Crevicing" means removing aggregate from cracks and crevices using hand-held mineral prospecting tools.

(30) "Critical food fish or shellfish habitats" means those habitats that are essential to fish life. These habitats include habitats of special concern listed in WAC 220-660-100 and 220-660-320.

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

(32) "Design flood" means a stream discharge of a specific rate and probability best suited to ensure the project design creates and shapes habitat or protects property and structures to a given level of risk (e.g., the 100-year design flood).

(33) "Director" means the director of the department of fish and wildlife.

(34) "Ditch" means a wholly artificial watercourse or a natural watercourse (waters of the state) altered by humans.

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

(36) "Dredging" means removal of bed material using other than hand-held tools. This does not include metals mining and milling operations as defined in chapter 78.56 RCW.

(37) "Dryland dredge" means a suction dredge with a nozzle capable of introducing water under pressure from the suction dredge pump to the tip of the nozzle.

(38) "Early infestation" of an aquatic noxious weed means a stage of development, life history, or area of coverage that makes ((one hundred))100 percent control and eradication likely to occur.

(39) "Emergency" means an immediate threat to life, the public, property, or of environmental degradation.

(40) "Emergency HPA" means a verbal or written hydraulic project approval issued in response to a declaration of emergency.

(41) "Entrained" means the entrapment of fish into a watercourse diversion that has no screen, into high velocity water along the face of an improperly designed screen, or into the vegetation cut by a mechanical harvester.

(42) "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.

(43) "Eradicate" or "eradication" of an aquatic noxious weed means to eliminate it within an area of infestation.

(44) "Established ford" means a crossing place in a watercourse that was in existence and used annually before 1986 or permitted by the department in or after 1986, and has identifiable approaches on the banks.

(45) "Excavation line" means a line on the dry bed at or parallel to the water's edge. The department determines the distance from the water's edge for each project site. The excavation line may change with water level fluctuations.

(46) "Excavation site" means the pit, furrow, or hole from which aggregate is removed to process and recover minerals, or into which wastewater is discharged to settle out sediments.

(47) "Excavation zone" means the area between the excavation line and the bank or the center of the gravel bar.

(48) "Expedited HPA" means a written hydraulic project approval issued in those instances ((where)) when normal permit processing would result in a significant hardship for the applicant or unacceptable damage to the environment.

(49) "Farm and agricultural land" means those lands ((identified))defined in RCW 84.34.020.

(50) "Filter blanket" means one or more layers of pervious materials (organic, mineral, or synthetic) designed and installed to provide drainage, yet prevent the movement of soil particles by flowing water.

(51) "Fish conservation bank" means a habitat creation, restoration, or enhancement project intended to provide a bank of credits to compensate for unavoidable impacts to habitat that supports fish life from future development projects. Fish conservation banks are managed to optimize desired habitat for ESA-listed and at-risk fish species.

(52) "Fish habitat" or "habitat that supports fish life" means habitat, which is used by fish life at any life stage at any time of the year including potential habitat likely to be used by fish life, which could reasonably be recovered by restoration or management and includes off-channel habitat.

(53) "Fish habitat enhancement project" means a hydraulic project that meets criteria in RCW 77.55.181 (1)(a).

(54) "Fish habitat improvement structures" or "stream channel improvements" means natural materials such as large wood, rock, or synthetic materials such as chain or rope placed in or next to bodies of water to improve existing conditions for fish life. Examples are engineered logjams, large woody material, and boulders.

(55) "Fish guard" means ((a device installed at or near a surface water diversion head gate, or on the intake of any device used for removing water from fish-bearing waters, to prevent entrainment, injury, or death of fish life. Fish guards physically keep fish from entering the diversion or intake and do not rely on avoidance behavior))"fish screen" as defined in subsection (58) of this section.

(56) "Fish life" means all fish species, including food fish, shellfish, game fish, unclassified fish and shellfish species, and all stages of development of those species.

(57) "Fish passage improvement structure" means artificial structures that are used to provide passage through, over, and/or around artificial barriers. They provide a graduated change in gradient with refuge areas allowing fish to pass barriers.

(58) "Fish screen" means (("fish guard."))a device installed at or near a surface water diversion head gate, or on the intake of any device used for removing water from fish-bearing waters, to prevent entrainment, injury, or death of fish life. Fish screens physically keep fish from entering the diversion or intake and do not rely on avoidance behavior.

(59) "Flood gate" means a structure to control flooding through which water flows freely in one direction but is prevented from flowing in the other direction.

(60) "Food fish" means those species of the classes Osteichthyes, Agnatha, and Chondrichthyes that must not be fished for except as authorized by rule of the commission.

(61) "Forest practices hydraulic project" means a hydraulic project that requires a forest practices application or notification under chapter 76.09 RCW.

(62) "Frequent scour zone" means the area between the wetted perimeter and the toe of the slope. The frequent scour zone is comprised of aggregate, boulders, or bedrock. Organic soils are not present in the frequent scour zone.

(63) "Freshwater area" means those state waters and associated beds waterward of the ordinary high water line that are upstream of stream and river mouths. Freshwater areas also include all lakes, ponds, and tributary streams and surface-water-connected wetlands that provide or maintain habitat that supports fish life. This definition does not include irrigation ditches, canals, stormwater treatment, and conveyance systems, or other entirely artificial watercourses, except where they exist in a natural watercourse that has been altered by humans.

(64) "Functional grating" means the ((percent open area of the grating))portion of the grating that is open to allow light to penetrate to the water surface and that is not covered or blocked by any objects such as structural components, framing wood, flotation tubs, or objects placed on the surface of the grating.

(65) "Ganged equipment" means two or more pieces of mineral prospecting equipment coupled together to increase efficiency. An example is adding a second sluice to a high-banker.

(66) "General provisions" means those provisions that are included in every HPA.

(67) "Gold and Fish pamphlet" means a document that details the rules for conducting ((small-scale and other))mineral prospecting and mining activities with specific tools and equipment and that serves as the hydraulic project approval for certain mineral prospecting and mining activities in Washington state.

(68) "Gravity siphon aquatic mining" means any prospecting or mining activity that uses water drawn into a hose, pipe, or tube via the effects of gravity or siphon to excavate, concentrate, or process aggregate.

(69) "Habitat function" means the natural attributes of a given habitat that support the fish life that rely upon that habitat.

(70) "Habitat value" means an estimate of habitat quality, ecologically important functions and the relative value of the hydraulic project site within the watershed.

(71) "Hand-held equipment" means equipment held by hand and powered by internal combustion, hydraulics, pneumatics, or electricity. Examples are chainsaws, drills, and grinders.

(72) "Hand-held mineral prospecting tools" means tools used for mineral prospecting and mining that are held by hand and do not have moving parts powered, in whole or in part, by internal combustion, electricity, hydraulics, or pneumatics. Examples include, but are not necessarily limited to, shovels, picks, trowels, hammers, and pry bars.

(73) "Hand-held tools" means tools held by hand and are not powered by internal combustion, hydraulics, pneumatics, or electricity. Examples are shovels, rakes, hammers, pry bars, and cable winches. This definition does not apply to hand-held tools used for mineral prospecting. See "hand-held mineral prospecting tools."

(74) "Hatchery" means any water impoundment or facility used for the captive spawning, hatching, or rearing of fish life.

(75) "High-banker" means a stationary concentrator operated outside the wetted perimeter of the body of water from which the water is removed and that uses water supplied by hand or by pumping. A high-banker consists of a sluice box, hopper, and water supply. Aggregate is supplied to the high-banker by means other than suction dredging. This definition excludes rocker boxes. See Figure 1.

(76) "High-banking" means using a high-banker to recover minerals.

(77) "Hydraulic drop" means an abrupt drop in water surface elevation.

(78) "Hydraulic project" means the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.

(79) "Hydraulic project approval" or "HPA" means:

(a) A written approval for a hydraulic project issued under this chapter and signed by the director of the department or the director's designee; or

(b) A verbal approval for an emergency hydraulic project issued under this chapter by the director of the department or the director's designee; or

(c) The following printed pamphlet approvals:

(i) A "Gold and Fish" pamphlet issued under this chapter by the department, which identifies and authorizes specific small scale mineral prospecting and placer mining activities; or

(ii) An "Aquatic Plants and Fish" pamphlet issued under this chapter by the department, which identifies and authorizes specific aquatic plant removal and control activities.

(80) "Imminent danger" means a threat by weather, water flow, or other natural conditions that is likely to occur within ((sixty))60 days of a request for a permit application.

(81) "In-lieu fee (ILF) program" means a state or federal certified program authorizing a person pay a fee to a third party instead of conducting project-specific mitigation or buying credits from a mitigation or fish conservation bank.

(82) "In-water blasting" means the use of explosives on, under, or in waters of the state, or in any location adjacent to the waters of the state, where blasting could impact fish life or habitat that supports fish life.

(83) "Job site" means the area of ground including and immediately adjacent to the area where work is conducted under an HPA. For mineral prospecting and placer mining projects, the job site includes the excavation site.

(84) "Joint aquatic resources permit application" or "JARPA" means a form provided by the department and other agencies that a person may submit to request a written HPA for a hydraulic project.

(85) "Lake" means any natural standing fresh waters or artificially impounded natural fresh waters of the state, except impoundments of the Columbia and Snake rivers.

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

(87) "Macroalgae" means any of the nonvascular aquatic plant species (the red, green, or brown seaweeds) that can be seen without using a microscope. They may be attached to the substrate or other macroalgae by a holdfast, or found drifting individually or in mats.

(88) "Maintenance" means repairing, remodeling, or making minor alterations to a facility or project to keep the facility or project in properly functioning and safe condition.

(89) "Major modification" means any change to a hydraulic project approval that is not a minor modification.

(90) "Marina" means a public or private facility providing boat moorage space, fuel, or commercial services. Commercial services include overnight or live-aboard boating accommodations.

(91) "Marine terminal" means a public or private commercial wharf located in navigable waters of the state and used, or intended to be used, as a port or facility for storing, handling, transferring, or transporting goods to and from vessels.

(92) "Mean annual flood" means the average of all the annual peak floods of record.

(93) "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))19 years, as determined by National Oceanic and Atmospheric Administration (NOAA). It is measured from mean lower low water, which is a reference datum used to delineate waters of the state in saltwater areas.

(94) "Mean lower low water" or "MLLW" means the 0.0 feet tidal elevation, as determined by NOAA. It is determined by averaging each day's lowest tide at a particular location over a period of ((nineteen))19 years. MLLW is a reference datum used to delineate waters of the state in saltwater areas. NOAA provides detailed information on their "Tides, Currents, and Predictions" website.

(95) "Mechanical harvesting and cutting" means partially removing or controlling aquatic plants by using aquatic mechanical harvesters, which cut and collect aquatic plants, and mechanical cutters, which only cut aquatic plants.

(96) "Mineral prospect" or "mineral prospecting" means to excavate, process, or classify aggregate using hand-held mineral prospecting tools and mineral prospecting equipment.

(97) "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.

(98) "Mini high-banker" means a high-banker with a riffle area of three square feet or less. See Figure 2.

(99) "Mini rocker box" means a rocker box with a riffle area of three square feet or less. See Figure 3.

(100) "Mining" means the production activity that follows mineral prospecting.

(101) "Minor modification" means a small change in work timing or plans and specifications of a hydraulic project.

(102) "Mitigation" means sequentially avoiding impacts, minimizing impacts, and compensating for remaining unavoidable impacts to fish life or habitat that supports fish life.

(103) "Mitigation bank" means a site where wetlands or other aquatic resources are restored, created, enhanced, or preserved. The bank exists expressly to provide compensatory mitigation before unavoidable impacts to wetlands or other aquatic resources occur.

(104) "Mitigation sequence" means the successive steps that the department and the applicant must consider and implement to protect fish life when constructing or performing work. These steps must be considered and implemented in the order listed:

(a) Avoid the impact altogether by not taking a certain action or parts of an action.

(b) Minimize unavoidable impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking steps to reduce impacts.

(c) Rectify the impact by repairing, rehabilitating, or restoring the affected environment.

(d) Reduce or eliminate the impact over time.

(e) Compensate for remaining unmitigated impacts by replacing, enhancing, or providing substitute resources or environments.

(f) Monitor the impact and take appropriate corrective measures to reach the identified goal.

(105) "Motorized or gravity siphon equipment" means any form of motorized equipment including, but not limited to, a motorized suction dredge or a gravity siphon suction dredge, for the purpose of extracting gold, silver, or other precious metals, but does not include metals mining and milling operations as defined in RCW 78.56.020.

(106) "Multiple site permit" or "multisite permit" means a hydraulic project approval issued to a person ((under RCW 77.55.021)) for hydraulic projects occurring at more than one specific location and for which ((includes)) site-specific requirements are included.

(107) "Natural conditions" means environmental situations that occur or are found in nature. This does not include artificial or manufactured conditions.

(108) "Nearshore" means shallow waters where sunlight reaching the bed is sufficient to support the growth of submerged aquatic vegetation.

(109) "Nearshore zone" means the three critical "edge" habitats as follows: The edge between upland and aquatic environments, the edge between the shallow productive zone and deep water, and the edge between fresh and marine waters.

(110) "No net loss" means:

(a) Sequentially ((for)) avoiding impacts, minimizing unavoidable impacts, and compensating for remaining adverse impacts to fish life.

(b) Sequentially avoiding impacts, minimizing unavoidable impacts, and compensating for net loss of habitat functions necessary to sustain fish life.

(c) Sequentially avoiding impacts, minimizing unavoidable impacts, and compensating for loss of area by habitat type.

(d) Mitigation required to achieve no net loss should benefit the fish life being impacted.

(111) "Ordinary high water line" or "OHWL" means the mark on the shores of all water 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 the abutting upland. Provided, that in any area where the ordinary high water line cannot be found, the ordinary high water line adjoining saltwater is the line of mean higher high water and the ordinary high water line adjoining freshwater is the elevation of the mean annual flood.

(112) "Pan" means an open metal or plastic dish operated by hand to separate gold or other minerals from aggregate by washing the aggregate. See Figure 4.

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

(114) "Permanent ford" means a ford approved by the department that is in place for more than one operating season.

(115) "Person" means an applicant, authorized agent, permittee, or contractor. The term person includes an individual, a public or private entity, or an organization.

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

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

(118) "Power sluice" means "high-banker."

(119) "Power sluice/suction dredge combination" means a machine that can be used as a power sluice, or with minor modifications, as a suction dredge. See Figure 5.

(120) "Process aggregate" or "processing aggregate" means the physical or mechanical separation of the valuable mineral content within aggregate.

(121) "Protection of fish life" means avoiding, minimizing unavoidable impacts, and compensating for remaining impacts to fish life and the habitat that supports fish life ((through))by following mitigation sequencing.

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

(123) "Qualified professional" means a scientist, engineer, or technologist specializing in a relevant applied science or technology including fisheries or wildlife biology, engineering, geomorphology, geology, hydrology, or hydrogeology. This person may be certified with an appropriate professional organization, and acting under that association's code of ethics and subject to disciplinary action by that association. A qualified professional can also be someone who, through demonstrated education, experience, accreditation, and knowledge relevant to the particular subject matter, may be reasonably relied on to provide advice within that person's area of expertise. This definition does not supersede other state laws that govern the qualifications of professionals that perform hydraulic projects.

(124) "Redd" means a nest made in gravel, consisting of a depression dug by a fish for egg deposition, and associated gravel mounds. See Figure 6.

(125) "Rehabilitation" means major work required to restore the integrity of a structurally deficient or functionally obsolete structure. This can include partial replacement of a structure.

(126) "Replacement" means the complete removal of an existing structure and construction of a substitute structure in the same general location.

(127) "Riffle" means:

(a) The bottom of a concentrator containing a series of interstices or grooves to catch and retain a mineral such as gold; or

(b) A short, relatively shallow and coarse-bedded length of stream over which the stream flows at higher velocity and higher turbulence than it ((normally)) does in comparison to a pool.

(128) "River" or "stream" means "watercourse."

(129) "Riparian zones" means the land adjacent to streams, rivers, ponds, lakes, and those wetlands whose soils and vegetation are influenced by ponded or channelized water. They are the transition areas between aquatic and upland habitats often with elements of both ecosystems.

(130) "Rocker box" means a nonmotorized concentrator consisting of a hopper attached to a cradle and a sluice box operated with a rocking motion. See Figure 7.

(131) "Rotovation" means the use of aquatic rotovators, machines that have underwater rototiller-like blades, to uproot aquatic plants as a means of control.

(132) "Roughened channel" means to construct a channel of a graded mix of sediment with enough roughness and hydraulic diversity to achieve fish passage. Roughened channels are designed to resist erosion and are often built at a steeper gradient than the prevailing channel.

(133) "Saltwater area" means those state waters and associated beds waterward of the ordinary high water line in Puget Sound, the Strait of Juan de Fuca and the open coast. Saltwater areas include estuaries and other surface-water-connected wetlands that provide or maintain habitat that support fish life. This definition does not include irrigation ditches, canals, stormwater treatment and conveyance systems, or other entirely artificial watercourses, except where they exist in a natural watercourse that has been altered by humans.

(134) "Scientific measurement devices" means devices that measure and/or record environmental data, such as staff gauges, tide gauges, water recording devices, water quality testing ((and improvement)) devices, and similar instruments.

(135) "Seagrass" means native Zostera species, Ruppia maritima, and Phyllospadix species.

(136) "Shellfish" means those species of marine and freshwater invertebrates that have been classified and that must not be taken except as authorized by rule of the commission. The term shellfish includes all stages of development and the bodily parts of shellfish species.

(137) "Sluice" means a trough equipped with riffles across its bottom used to recover gold and other minerals with the use of flowing water. See Figure 8.

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

(139) "Special provisions" means those requirements that are part of a HPA, are site-specific or project-specific, and supplement or amend the technical provisions.

(140) "Spiral wheel" means a hand-operated or battery-powered rotating pan used to recover gold and minerals with the use of water. See Figure 9.

(141) "Stable slope" means a slope without measurable evidence of slumping, sloughing, or other movement. Stable slopes will not show evidence of landslides, uprooted or tilted trees, exposed soils, water-saturated soils, and mud, or the recent erosion of soils and sediment. Woody vegetation is typically present on stable slopes.

(142) "Suction dredge" means any motorized or nonmotorized device that removes aggregate from the bed, banks, or uplands by means of vacuum created by water flowing through a tube or hose. Bulb snifters are not considered suction dredges. See Figure 10.

(143) "Suction dredging" means using a suction dredge to recover gold and other minerals.

(144) "Tailings" means the waste material that remains after processing aggregate to remove valuable mineral content.

(145) "Temporary ford" means a ford that is in place for no more than one operating season ((or less)).

(146) "Tide gate" means a one-way check valve that prevents the backflow of tidal water.

(147) "Toe of the bank" or "toe of the structure" 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 waterward of 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.

(148) "Toe of the slope" means the base or bottom of a slope at the point where the ground surface abruptly changes to a significantly flatter grade.

(149) "Unimpeded fish passage" means the free movement of all fish species at any mobile life stage around or through a human-made or natural structure.

(150) "Unstable slope" means a slope with visible or measurable evidence of slumping, sloughing, or other movement. Evidence of unstable slopes includes landslides, uprooted or tilted trees, exposed soils, water-saturated soils, and mud, or the recent erosion of soils and sediment. Woody vegetation is typically not present on unstable slopes.

(151) "Watercourse" or "water body" means any portion of a stream or river channel, bed, bank, or bottom waterward of the ordinary high water line of waters of the state.

(152) "Water crossing structure((s))" means a structure((s)) that spans over, through, or under a watercourse. Examples are bridges, culverts, conduits, and fords.

(((152)))(153) "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, under Title 90 RCW.

(((153) "Water body" means "waters of the state."

(155)))(154) "Waters of the state" or "state waters" means all salt and freshwaters waterward of the ordinary high water line and within the territorial boundary of the state.

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

(((157)))(156) "Wetland(s)" is as defined in RCW 90.58.030.

(((158)))(157) "Wetted perimeter" means the areas of a watercourse covered with water. The wetted perimeter varies with flow, discharge, and tides.

(((159)))(158) "Woody vegetation" means perennial trees and shrubs having stiff stems and bark. Woody vegetation does not include grasses, forbs, or annual plants.

(((160)))(159) "Written notice" or "written notification" means a communication through U.S. mail or email.

(1) Description:

(a) There are six categories of HPAs: Standard, emergency, imminent danger, chronic danger, expedited, and pamphlet. These categories are discussed in more detail throughout this section. Most HPAs issued by the department are standard HPAs. Guidance for applying for an HPA is provided on the department's website.

(b) HPAs do not exempt a person from obtaining other necessary permits and following the rules and regulations of local, federal, and other Washington state agencies.

(2) Fish life concerns: Construction and other work activities in or near water bodies can kill or injure fish life directly and can damage or destroy habitat that supports fish life. Damaged or destroyed habitat can continue to cause lost fish life production for as long as the habitat remains altered. HPAs help ensure construction and other work is done in a manner that protects fish life.

(3) Standard HPA:

(a) The department issues a standard HPA when a hydraulic project does not qualify for an emergency, imminent danger, chronic danger, expedited or pamphlet HPA. An individual standard HPA is limited to a single project site. Some special types of standard HPAs may cover multiple project sites.

(b) Special types of standard HPAs:

(i) Fish habitat enhancement project (FHEP) HPA.

(A) Projects must satisfy the requirements in RCW 77.55.181(1) to be processed as a fish habitat enhancement project.

(B) Projects that are compensatory mitigation for a development or other impacting project are not eligible. This includes proposals for mitigation banks or in-lieu fee mitigation proposals. The sole purpose of the project must be for fish habitat enhancement.

(C) The department may reject an FHEP proposed under RCW 77.55.181 if the local government raises concerns during the comment period that impacts from the project cannot be mitigated by conditioning the HPA. The department will reject an FHEP if the department determines that the size and the scale of the project raises public health or safety concerns. If the department rejects a project for streamlined processing, the department must provide written notice to the applicant and local government within ((forty-five))45 days of receiving the application.

(D) An applicant whose fish habitat enhancement project is rejected may submit a new complete written application with project modifications or additional information required for streamlined processing. An applicant may request that the department consider the project under standard HPA processing procedures by submitting a new complete written application for standard processing.

(ii) Multisite HPA.

(A) A standard HPA may authorize work at multiple project sites if:

(I) All project sites are within the same water resource inventory area (WRIA) or tidal reference area;

(II) The primary hydraulic project is the same at each site so there is little variability in HPA provisions across all sites; and

(III) Work will be conducted at no more than five project sites to ensure department staff has sufficient time to conduct site reviews.

(B) The department may make an exception for projects the department has scoped prior to application submittal or when no prepermit issuance site visits are needed.

(iii) General HPA.

(A) The department may issue general HPAs to government agencies, organizations, or companies to perform the same work in multiple water bodies across a large geographic area.

(B) To qualify for a general HPA, projects must protect fish life:

(I) Technical provisions in the HPA must fully mitigate impacts to fish life;

(II) The projects must be relatively simple so that the HPA provisions are the same across all sites, and can therefore be permitted without site-specific provisions; and

(III) The projects must have little or no variability over time in site conditions or work performed.

(C) The general HPA will include a requirement that notice be given to the department when activities utilizing heavy equipment begin. The department may waive this requirement if the permittee and department meet annually to review scheduled activities for the upcoming year.

(D) The department and the applicant may negotiate the scope and scale of the project types covered. The department and the applicant must agree on the fish protection provisions required before the application is submitted.

(E) The department may reject applications for a general HPA if:

(I) The proposed project does not meet the eligibility requirements described in subsection (3)(b)(iii)(B) of this section; or

(II) The department and the applicant cannot agree on the fish protection provisions.

(F) The department must provide written notice of rejection of a general HPA application to the applicant. The applicant may submit a new complete written application with project modifications or additional information required for department consideration under standard HPA processing procedures.

(iv) "Model" HPA.

(A) The department will establish a "model" HPA application and permitting process for qualifying hydraulic projects. To qualify, an individual project must comply with the technical provisions established in the application. Hydraulic projects that qualify for the model process must:

(I) Fully mitigate impacts to fish life in the technical provisions of the HPA;

(II) Be a low complexity project that minimizes misinterpretation of the HPA provisions allowing the HPA to be permitted without site-specific provisions; and

(III) Meet all of the eligibility requirements described in the model application.

(B) If needed to confirm project eligibility, the department may conduct a site visit before approving or rejecting a model application.

(C) The department may reject applications for model HPAs if:

(I) The plans and specifications for the project are insufficient to show that fish life will be protected; or

(II) The applicant or authorized agent does not fill out the application completely or correctly.

(D) The department must provide written notice of rejection of an application to the applicant. The applicant may submit a new complete written application with project modifications or additional information required for department consideration under standard HPA processing procedures under this section, or may submit a new model application if the department rejected the application because the person did not fill out the original application correctly.

(4) Emergency HPA:

(a) Declaring an emergency.

(i) Authority to declare an emergency, or continue an existing declaration of emergency, is conveyed to the governor, the department, or to a county legislative authority by statute. An emergency declaration may be made when there is an immediate threat to life, the public, property, or of environmental degradation;

(ii) The county legislative authority must notify the department, in writing, if it declares an emergency;

(iii) Emergency declarations made by the department must be documented in writing;

(iv) When an emergency is declared, the department must immediately grant verbal approval upon request for work to protect life or property threatened by waters of the state because of the emergency, including repairing or replacing a stream crossing, removing obstructions, or protecting stream banks. The department may also grant written approval if the applicant agrees.

(b) If the department issues a verbal HPA, the department must follow up with a written HPA documenting the exact provisions of the verbal HPA within ((thirty))30 days of issuing the verbal HPA.

(c) Compliance with the provisions of chapter 43.21C RCW (State Environmental Policy Act) is not required for emergency HPAs.

(d) The department may require a person to submit an as-built drawing within ((thirty))30 days after the hydraulic project authorized in the emergency HPA is completed.

(e) Within ((ninety))90 days after a hydraulic project authorized in an emergency HPA is completed, any remaining impacts must be mitigated or a mitigation plan must be submitted to the department for approval.

(5) Imminent danger HPA:

(a) Authority to declare imminent danger is conveyed to the department or county legislative authority by statute. The county legislative authority must notify the department in writing if it determines that an imminent danger exists.

(b) Imminent danger declarations made by the department must be documented in writing.

(c) When imminent danger exists, the department must issue an expedited HPA upon request for work to remove obstructions, repair existing structures, restore banks, and to protect fish life or property.

(d) When imminent danger exists, and before starting work, a person must submit a complete written application to the department to obtain an imminent danger HPA. Compliance with the provisions of chapter 43.21C RCW (State Environmental Policy Act) is not required for imminent danger HPAs.

(e) Imminent danger HPAs must be issued by the department within ((fifteen))15 calendar days after receiving a complete written application. Work under an imminent danger HPA must be completed within ((sixty))60 calendar days of the date the HPA is issued.

(f) Within ((ninety))90 days after a hydraulic project authorized in an imminent danger HPA is completed, any remaining impacts must be mitigated or a mitigation plan must be submitted to the department for approval.

(6) Chronic danger HPA:

(a) The department must issue a chronic danger HPA upon request for work required to abate the chronic danger. This work may include removing obstructions, repairing existing structures, restoring banks, restoring road or highway access, protecting fish life, or protecting property.

(b) Authority to declare when a chronic danger exists is conveyed to a county legislative authority by statute. A chronic danger is a condition in which any property, except for property located on a marine shoreline, has experienced at least two consecutive years of flooding or erosion that has damaged or has threatened to damage a major structure, water supply system, septic system, or access to any road or highway.

(c) The county legislative authority must notify the department in writing when it determines a chronic danger exists.

(d) When chronic danger is declared, and before starting work, a person must submit a complete written application to the department to obtain a chronic danger HPA. Unless the project also satisfies the requirements for fish habitat enhancement projects identified in RCW 77.55.181 (1)(a)(ii), compliance with the provisions of chapter 43.21C RCW (State Environmental Policy Act) is required. Projects that meet the requirements in RCW 77.55.181 (1)(a)(ii), will be processed under RCW 77.55.181(3), and the provisions of chapter 43.21C RCW will not be required.

(7) Expedited HPA:

(a) The department may issue an expedited HPA when normal processing would result in significant hardship for the applicant or unacceptable environmental damage would occur.

(b) Before starting work, a person must submit a complete written application to the department to obtain an HPA.

(c) Compliance with the provisions of chapter 43.21C RCW (State Environmental Policy Act) is not required for expedited HPAs. The department must issue expedited HPAs within ((fifteen))15 calendar days after receipt of a complete written application. Work under an expedited HPA must be completed within ((sixty))60 calendar days of the date the HPA is issued.

(d) Within ((ninety))90 days after a hydraulic project authorized in an expedited HPA is completed, any remaining impacts must be mitigated or a mitigation plan must be submitted to the department for approval.

(8) Pamphlet HPA:

(a) There are two pamphlet HPAs, Gold and Fish and Aquatic Plants and Fish, that cover the most common types of small scale mineral prospecting and removing or controlling aquatic plants, respectively. A person must follow the provisions in the pamphlet. If a person cannot follow the provisions, or disagrees with any provision, the permittee must apply for a standard HPA before starting the hydraulic project.

(b) A person must review a pamphlet HPA before conducting the authorized hydraulic project.

(c) When a pamphlet HPA is used, the permittee must have the pamphlet HPA on the job site when conducting work and the pamphlet must be immediately available for inspection by the department upon request.

(d) All persons conducting the project must follow all provisions of the pamphlet HPA.

(e) The department may grant exceptions to a pamphlet HPA only if a person applies for a standard individual HPA for the project.

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

(9) How to get an HPA:

(a) How to get a pamphlet HPA: A person can download and save or print a pamphlet HPA from the department's website. A person may also request a pamphlet HPA from the department either verbally or in writing.

(b) How to get an emergency HPA: Upon an emergency declaration, and before starting emergency work, a person must obtain a verbal or written HPA from the department. A complete written application is not required. However, a person must provide adequate information describing the proposed action. Compliance with the provisions of chapter 43.21C RCW (State Environmental Policy Act), is not required for emergency HPAs. A person may request a verbal or written emergency HPA from the biologist who issues HPAs for the geographic area where the emergency is located Monday through Friday from 8:00 a.m. to 5:00 p.m. If the biologist cannot be contacted or it is after business hours, a person must contact the emergency hotline at ((360-902-2537))1-800-514-8140 to request an emergency HPA.

(c) How to get a standard, expedited, or chronic danger HPA:

(i) A person must submit a complete written application to the department to obtain an HPA unless the project qualifies for one of the following:

(A) A pamphlet HPA, subsection (3) of this section; or

(B) An emergency HPA, subsection (5) of this section.

(ii) When applying for an HPA, a person must submit one of the following application forms to the department:

(A) The electronic online application developed by the department;

(B) The current version of the JARPA;

(C) The current version of the JARPA including the most recent version of the application for streamlined processing of fish habitat enhancement projects when applying for streamlined processing under RCW 77.55.181. These may be submitted to the department as attachments to the online application form;

The Washington department of transportation may omit the JARPA when applying for streamlined processing of fish habitat enhancement projects using the online application system;

(D) The most recent version of the model HPA application or other department-approved alternative applications available from the department's public website; or

(E) The current version of the JARPA if applying for approval of a watershed restoration project under RCW 77.55.171. This may be submitted to the department as an attachment to the online application form.

(iii) A complete application package for an HPA must contain:

(A) A completed application form signed and dated by the applicant, landowner(s) or landowner representative(s) of any project site or off-site mitigation location, and the authorized agent, if any. Completing and submitting the application forms through the department's online permitting system is the same as providing signature and date, if all documents required during the online application process are submitted to the department. The property owner, if different than the applicant, or easement holder must consent to the department staff entering the property where the project is located to inspect the project site or any work;

(B) Plans for the overall project;

(C) Complete plans and specifications for all aspects of the proposed construction or work waterward of the mean higher high water line in salt water, or waterward of the ordinary high water line in fresh water;

(D) A description of the measures that will be implemented for the protection of fish life, including any reports assessing impacts from the hydraulic project to fish life and their habitat, and plans to mitigate those impacts to ensure the project results in no net loss;

(E) For a standard or chronic danger HPA application, a copy of the written notice from the lead agency demonstrating compliance with any applicable requirements of the State Environmental Policy Act under chapter 43.21C RCW, unless otherwise provided for in chapter 77.55 RCW; or the project qualifies for a specific categorical exemption under chapter 197-11 WAC;

(F) Written approval by one of the entities specified in RCW 77.55.181 if the applicant is proposing a fish enhancement project;

(G) For an expedited HPA application, an explanation of why normal processing would result in significant hardship for the applicant or unacceptable environmental damage.

(H) For a standard HPA application for mineral prospecting involving motorized or gravity siphon equipment, a copy of a permit issued under the federal Clean Water Act by Washington department of ecology that authorizes the use of that equipment at the location proposed, or written notice from Washington department of ecology declaring that a federal Clean Water Act permit is not required.

(I) When applying for a standard written HPA for mineral prospecting work within the wetted perimeter outside of the allowable work times authorized in WAC 220-660-300 and 220-660-305, a person must identify the upstream and downstream extent of each project location within a stream. The location of each site can be no greater than the length contained within a registered mining claim, if the project occurs on a claim, or ((one thousand three hundred))1,300 linear feet of stream, if the project does not occur on a claim.

(iv) HPA application submission:

(A) A person must submit the complete application package by:

(I) Using the department's online permitting system;

(II) Sending the package via mail to:

Department of Fish and Wildlife

P.O. Box 43234

Olympia, WA 98504-3234;

(III) Sending the package via email to: HPAapplications@dfw.wa.gov;

(IV) ((Sending the package via fax to: 360-902-2946;

(V))) Uploading the package to a file transfer protocol site acceptable to the department; or

(((VI)))(V) Hand delivering the package to the department at 1111 Washington Street S.E., Olympia, WA 98504, Habitat Program, Fifth Floor. The department will not accept applications submitted elsewhere or by other than the applicant or authorized agent.

(B) Dimensions of printed documents submitted with the application package may not be larger than ((eleven))11 inches by ((seventeen))17 inches. Pages of documents submitted may not be bound except by paper clips or other temporary fastening.

(C) A person must submit applications and supporting documents with a combined total of ((thirty))30 or more pages as digital files rather than printed documents. All digital files must be in formats compatible with Microsoft Word, Microsoft Excel, or Microsoft Access programs, or in PDF, TIFF, JPEG, or GIF formats.

(D) Applications submitted to the habitat program during normal business hours (8:00 a.m. to 5:00 p.m. Pacific Standard Time) are deemed received on the date the habitat program receives the application. The department may declare applications received by the habitat program after normal business hours as received on the next business day.

(10) Incomplete applications:

(a) Within ((ten))10 days of receipt of the application, the department must determine whether an application meets the requirements of this section. If the department determines the application does not meet the requirements, the department will provide written or emailed notification of an incomplete application to the applicant or authorized agent. This written or emailed notification must include a description of information needed to make the application complete. The department may return the incomplete application to the applicant or authorized agent or hold the application on file until it receives the missing information. The department will not begin to process the application until it receives all information needed to complete the application.

(b) The applicant or authorized agent must submit additional information in response to a written notification of incomplete application through the department's online permitting system or to the department's habitat program, Olympia headquarters office. The department will not accept additional information submitted elsewhere or by other than the applicant or authorized agent.

(c) The department may close any application that has been incomplete for more than ((twelve))12 months. The department must provide the applicant or authorized agent with written notification at least one week before closing the application and must provide the option for the applicant or authorized agent to postpone the closure for up to one year. The department must provide the applicant with written notification at the time it closes the application. After an application is closed, the applicant or authorized agent must submit a new complete application to receive further consideration of the project.

(d) The department may reject a standard HPA application for mineral prospecting involving motorized or gravity siphon equipment if the proposed project location or locations are in an area in which Washington department of ecology is prohibited under RCW 90.48.615 from issuing a permit under the federal Clean Water Act.

(11) Application review period:

(a) Once the department determines an application is complete, the department will provide to tribes and local, state, and federal permitting or authorizing agencies a seven-calendar-day review and comment period. The department will not issue the HPA before the end of the review period to allow all interested tribes and agencies to provide comments to the department. The department may consider all written comments received when issuing or provisioning the HPA. The review period is concurrent with the department's overall review period. Emergency, imminent danger, expedited, and modified HPAs are exempt from the review period requirement.

(b) Except for emergency, imminent danger, and expedited HPAs, the department will grant or deny approval within ((forty-five))45 calendar days of the receipt of a complete written application. The department will grant approval of imminent danger and expedited HPAs within ((fifteen))15 days of the receipt of a complete written application. The department will grant approval of emergency HPAs immediately upon request if an emergency declaration has been made.

For streamlined processing of Washington department of transportation fish passage barrier correction projects, the department will, within 30 days, either grant or deny approval, or make a determination that the streamlined review and approval process created by RCW 77.55.181 is not appropriate for the proposed project.

(c) If the department declares an imminent danger, applicant hardship, or immediate threat regarding an application for expedited or emergency HPA, the department must place written documentation of that declaration and justification for it in the application record within three days of issuing the written HPA.

(12) Suspending the review period:

(a) An applicant or authorized agent may request a delay in processing a standard HPA. The applicant or authorized agent must submit a written request for the delay through the department's online permitting system or to the habitat program's Olympia headquarters office. The department may not accept delay requests submitted elsewhere or by a person other than the applicant or authorized agent.

(b) If the department suspends the review period, the department must immediately notify the applicant in writing of the reasons for the delay. The department may suspend the review period (with or without the applicant's concurrence) if:

(i) The site is physically inaccessible for inspection or not in a condition to be evaluated (i.e., snow cover, frozen);

(ii) The applicant or authorized agent remains unavailable or unable to arrange for a field evaluation of the proposed project within ((ten))10 working days of the department's receipt of the application;

(iii) The applicant or authorized agent submits a written request for a delay;

(iv) The department is issuing an HPA for a stormwater discharge and is complying with the requirements of RCW 77.55.161 (3)(b); or

(v) The department is reviewing the application as part of a multiagency permit streamlining effort, and all participating permitting and authorizing agencies and the permit applicant agree to an extended timeline longer than ((forty-five))45 calendar days.

(c) The department may close any application if the application has been delayed for processing more than ((twelve))12 months for any of the reasons identified in subsection (12)(a) or (b) of this section. The department must provide the applicant or authorized agent with written notification at least one week before closing the application and must provide the option for the applicant or authorized agent to postpone the closure for up to one year. The department must provide the applicant with written notification at the time it closes the application. After an application is closed, the applicant or authorized agent must submit a new complete application to receive further consideration of the project.

(13) Issuing or denying a hydraulic project approval:

(a) Protection of fish life is the only grounds upon which the department may deny or provision an HPA, as provided in RCW 77.55.021. The department may not unreasonably withhold or condition approval of an HPA. The HPA provisions must reasonably relate to the project and must ensure that the project provides proper protection for fish life. The department may not impose provisions that attempt to optimize conditions for fish life that are out of proportion to the impact of the proposed project.

(b) The department may not deny an emergency, imminent danger, chronic danger, or an expedited HPA, as provided in RCW 77.55.021. However, these projects must comply with the provisions in this chapter that are included in an HPA. The department will deny any other type of HPA or request to change an existing HPA when the project will not protect fish life, unless enough mitigation can be assured by provisioning the HPA or modifying the proposal. If the department denies approval, the department must provide the applicant with a written statement of the specific reasons why and how the proposed project would adversely affect fish life, as provided in RCW 77.55.021.

(c) The department may place specific time limitations on project activities in an HPA to protect fish life.

(d) The department may require a person to notify the department before hydraulic project construction or other hydraulic project work starts, upon project completion, or at other times that the department deems necessary while the HPA is in effect. The department may also require a person to provide periodic written reports to assess HPA compliance.

(e) The HPA must contain provisions that allow for minor modifications to the work timing, plans, and specifications of the project without requiring the reissuance of the HPA, as long as the modifications do not adversely affect fish life or the habitat that supports fish life. The permittee should contact the habitat program's Olympia headquarters office through email or the department's online permit application system to request a minor modification.

(f) A person may propose or conduct a hydraulic project under an environmental excellence program agreement authorized under chapter 43.21K RCW. These projects must be applied for and permitted under the requirements of chapter 43.21K RCW.

(14) Hydraulic project approval expiration time periods:

(a) Except for emergency, imminent danger, expedited, and pamphlet HPAs, the department may grant standard HPAs that are valid for up to five years. The permittee must demonstrate substantial progress on construction of the portion of the project authorized in the HPA within two years of the date of issuance.

(b) Imminent danger and expedited HPAs are valid for up to ((sixty))60 days, and emergency HPAs are valid for the expected duration of the emergency hydraulic project.

(c) Pamphlet HPAs remain in effect indefinitely until modified or rescinded by the department.

(d) The following types of agricultural hydraulic project HPAs remain in effect without the need for periodic renewal; however, a person must notify the department before starting work each year:

(i) Seasonal work that diverts water for irrigation or stock watering; and

(ii) Stream bank stabilization projects to protect farm and agricultural land if the applicant can show that the problem causing the erosion occurs annually or more frequently. Evidence of erosion may include history of permit application, approval, or photographs. Periodic floodwaters alone do not constitute a problem that requires an HPA.

(15) Requesting a time extension, renewal, modification, or transfer of a hydraulic project approval:

(a) The permittee may request a time extension, renewal, modification, or transfer of an active HPA. Before the HPA expires, the permittee or authorized agent must submit a written request through the department's online permitting system or to the habitat program's Olympia headquarters office. The department may not accept requests for delay, renewal, modification, or transfer of an HPA submitted elsewhere or by a person other than the permittee or authorized agent. Written requests must include the name of the applicant, the name of the authorized agent if one is acting for the applicant, the permit number or application identification number of the HPA, the date issued, the permitting biologist, the requested changes to the HPA if requesting a time extension, renewal, or modification, the reason for the requested change, the date of the request, and the requestor's signature. Requests for transfer of an HPA to a new permittee or authorized agent must additionally include a signed, written statement that the new permittee or authorized agent agrees to the conditions of the HPA, that they agree to allow the department access to the project location to inspect the project site, mitigation site, or any work related to the project, and that they will not conduct any project activities until the department has issued approval.

(b) Requests for time extensions, renewals, or modifications of HPAs are deemed received on the date received by the department. The department may declare applications submitted to habitat program after normal business hours as received on the next business day.

(c) Within ((forty-five))45 days of the requested change, the department must approve or deny the request for a time extension, renewal, modification, or transfer of an approved HPA.

(d) Unless the new permittee or authorized agent requests a time extension, renewal, or modification of an approved HPA, the department may change only the name and contact information of the permittee or authorized agent and must not alter any provisions of the HPA except the project or location start dates when granting a transfer.

(e) A permittee may request a modification or renewal of an emergency HPA until the emergency declaration expires or is rescinded. Requests for changes to emergency HPAs may be verbal, but must contain all of the information in (a) of this subsection.

(f) The department must not modify or renew an HPA beyond the applicable five-year or ((sixty))60-day periods. A person must submit a new complete application for a project needing further authorization beyond these time periods.

(g) The department will issue a letter documenting an approved minor modification(s) and a written HPA documenting an approved major modification(s) or transfer.

(16) Modifications of a hydraulic project approval initiated by the department:

(a) After consulting with the permittee, the department may modify an HPA because of changed conditions. The modification becomes effective immediately upon issuance of a new HPA.

(b) For hydraulic projects that divert water for agricultural irrigation or stock watering, or when the hydraulic project or other work is associated with stream bank stabilization to protect farm and agricultural land as defined in RCW 84.34.020, the department must show that changed conditions warrant the modification in order to protect fish life.

(17) Revoking an HPA.

(a) The department may revoke an HPA under the following conditions:

(i) At the written request of the permittee or authorized agent;

(ii) As the result of an informal or formal appeal decision;

(iii) As the result of a court ruling finding that the department issued the HPA in error;

(iv) Following change of a determination of nonsignificance or mitigated determination of nonsignificance to a determination of significance by a lead agency under chapter 43.21C RCW that applies to the hydraulic project approved by the HPA;

(v) The applicant did not correctly identify compliance with the requirements of chapter 43.21C RCW in the HPA application and the department was unaware of the error until after the HPA was issued;

(vi) Changed physical or biological conditions at the site of the hydraulic project have occurred before project initiation such that fish life cannot be protected if the project proceeds under the requirements of the existing HPA;

(vii) The permittee has not demonstrated substantial progress on construction of the hydraulic project within two years of the date of issuance as required in RCW 77.55.021 (9)(a). Substantial progress means initiation of work at any of the project locations identified in the HPA;

(viii) Duplicate HPAs have been issued for the same hydraulic project.

(b) The department must provide the permittee or authorized agent with written notification before revoking the HPA.

(c) The department must notify the permittee or authorized agent in writing immediately upon revoking the HPA.

(18) Requesting a preapplication determination:

(a) A person may request information or a technical assistance site visit from the department prior to submitting an HPA application or at any other time. The department will provide the requested information either verbally or in writing.

(b) If a person is unsure about whether proposed construction or other work landward of (above) the ordinary high water line requires an HPA, they may request a preapplication determination from the department under RCW 77.55.400. The department must evaluate the proposed project and determine if it is a hydraulic project and, if so, whether an HPA from the department is required to ensure proper protection of fish life.

(c) The preapplication determination request must be submitted through the department's online permitting system and must contain:

(i) A description of the proposed project, which must include the location of the ordinary high water line;

(ii) A map showing the location of the project site, which must include the location of the ordinary high water line; and

(iii) Preliminary plans and specifications of the proposed project, if available, which include the location of the ordinary high water line.

(d) The department must provide tribes and local governments a seven calendar day review and comment period. The department must consider all applicable written comments that it receives before it issues a determination as described in this subsection.

(e) The department must issue a written determination, including its rationale for the decision, within ((twenty-one))21 calendar days of receiving the request.

(f) Chapter 43.21C RCW (state environmental policy) does not apply to preapplication determinations issued under this subsection.

(g) The department's preapplication determination decision may be appealed as provided in WAC 220-660-460 (Informal appeal of administrative action) or WAC 220-660-470 (Formal appeal of administrative action).

(19) Notice of intent to disapprove HPA applications:

(a) The department may disapprove HPA applications submitted by a project proponent who has failed to comply with a stop work order or notice to comply issued under WAC 220-660-480, or who has failed to pay civil penalties issued under WAC 220-660-480. The term "project proponent" has the same definition as in RCW 77.55.410.

(b) The department may disapprove HPA applications submitted by such project proponents for up to one year after the date on which the department issues a notice of intent to disapprove HPA applications, or until such project proponent pays all outstanding civil penalties and complies with all notices to comply and stop work orders issued under WAC 220-660-480, whichever is longer (disapproval period).

(c) The department must provide written notice of its intent to disapprove HPA applications to the project proponent and to any authorized agent or landowner identified in the application, in person or via United States mail, to the mailing address(es) listed on the project proponent's HPA application.

(d) The disapproval period begins on the date the department's notice of intent to disapprove HPA applications becomes final. The notice of intent to disapprove HPA applications becomes final ((thirty))30 calendar days after the department issues it, or upon exhaustion of all applicable administrative and/or judicial remedies.

(e) Any project proponent issued a notice of intent to disapprove HPA applications may, within ((thirty))30 days of the date of the notice, initiate a formal appeal of the notice as provided in WAC 220-660-470 (Formal appeal of administrative actions).

(f) The department will provide notice and waiver of fines, civil penalties, and administrative sanctions consistent with RCW 34.05.110 and WAC 220-660-480(12).

(1) The department may modify or ((delete))omit any technical provisions in this chapter through establishing ((conditions on))site-specific or project-specific provisions in an HPA permit when any of the following is demonstrated:

(a) There is no logical application to a project;

(b) A person provides an alternative to the provision that demonstrates that it provides equal or greater protection for fish life;

(c) Enforcement of the original provision would result in denial of an HPA when there is enough mitigation defined to allow the project;

(d) The modification or ((deletion))omission of the provision will not cause a loss of or injury to fish life, or the loss or permanent degradation of the habitat that supports fish life;

(e) The proposed hydraulic project is part of an approved cleanup action under Model Toxics Control Act, Comprehensive Environmental Response Compensation and Liability Act, or Superfund Amendment and Reauthorization Act;

(f) The technical provision or provisions conflict with applicable local, state, or federal regulations that provide equal or better protection for fish life;

(g) The technical provision or provisions are not feasible due to geological, engineering or environmental constraints or safety concerns; or

(h) New scientific information is made available that demonstrates the project will result in equal or greater protection of fish life, and the habitat that supports fish life.

(2) The department may add ((conditions on the HPA permit to protect fish life as needed))technical provisions to address project-specific or site-specific impacts to fish life not adequately mitigated by the common technical provisions. However, all provisions in the HPA must relate to the project and be proportional to the impact of the project. The HPA will include all of the ((technical)) provisions with which a person will be required to comply.

(1) Description: The department defines mitigation as sequentially avoiding impacts, minimizing and rectifying unavoidable impacts, and compensating for remaining impacts. This mitigation must achieve no net loss.

(2) Fish life concerns: Work conducted in or near water can negatively impact fish life. Best management practices such as proper design and siting, construction timing, isolating the work area, sediment and erosion control, water-quality management, and revegetation can avoid, minimize, and rectify many of these impacts. These best management practices are reflected in the technical provisions. However, remaining impacts may require compensation to offset the loss of fish life and habitat that supports fish life.

(3) Mitigation requirements:

(a) The department must determine if the project actions proposed will mitigate for the project impacts to fish life and the habitat that supports fish life based on available information.

(b) A person must pay for any surveys, studies, or reports required by the department to determine if the hydraulic project mitigates impacts to fish life and the habitat that supports fish life. When required, the department will provide a written explanation of why the information is required and what standards or protocols the applicant must follow.

(c) All work subject to this chapter must achieve no net loss through a sequence of mitigation actions. However, the department may not impose permit conditions that attempt to optimize conditions for fish life that are out of proportion to the impact of the proposed project.

(d) Mitigation includes all of the action steps in the mitigation sequence.

(e) Compensatory mitigation is not required for hydraulic projects if other actions in the mitigation sequence are taken that avoid or offset impacts to fish life.

(f) The department may require advance mitigation if an experimental mitigation technique is being performed. If required, the advance mitigation should be fully functional prior to the project impacts.

(g) All maintenance work must comply with the applicable common technical ((construction)) provisions and project-specific and site-specific ((construction))technical provisions. Maintenance work that rehabilitates and replaces a structure must also comply with the applicable common technical design provisions and project-specific and site-specific technical provisions.

(h) Replacement of any portion of any structure must comply with the requirements in this chapter governing materials that may be used.

(4) Compensatory mitigation:

(a) The department may determine that compensatory mitigation actions are needed to offset impacts remaining after other actions in the mitigation sequence are completed.

(b) When compensatory mitigation is needed to offset impacts, the department prefers compensatory mitigation actions that restore impacted habitat types and functions on-site or immediately adjacent to the impact site. If mitigation actions on or near the project site cannot mitigate the project impacts, then the department prefers compensatory mitigation actions at another location benefit the same fish life populations, habitat types and functions as those impacted by the project. However, the department must give due consideration to any compensatory mitigation proposal that improves the overall habitat functions in the watershed for the affected fish life populations at the project site.

(c) At the request of the project proponent, the department must accommodate the mitigation needs of the infrastructure or noninfrastructure development, including proposals or portions of proposals that are explored or developed in RCW 90.74.040. However, the department will not approve compensatory mitigation that does not provide equal or better habitat functions, value and quantity by habitat type.

(d) The department will evaluate mitigation credits and debits on a scientifically valid measure of habitat function, value, and quantity by habitat type. Compensatory mitigation must also compensate for temporal losses, uncertainty of performance, loss of habitat quantity by habitat type, and differences in habitat functions and value.

(e) The department will consider the use of credits from an approved programmatic option such as a state or federal certified fish conservation bank, a joint 404/401 mitigation and fish conservation bank, or in-lieu fee program as a form of compensation only after the standard mitigation sequencing has been applied at the impact site. These credits should benefit the same fish life populations as those impacted by the hydraulic project.

(f) For calculating compensatory mitigation requirements under this chapter, the environmental baseline is habitat conditions at the time the HPA application is submitted. However, this baseline does not apply to hydraulic projects constructed illegally. Structures that predate the hydraulic code or structures that were previously authorized under past versions of the hydraulic code are deemed legal structures.

(g) The department will evaluate impacts caused by a hydraulic project by comparing the condition of the habitat before project construction or the performance of work to the anticipated condition of the habitat after project completion.

(h) Maintenance on a legally constructed structure does not require compensatory mitigation unless:

(i) The maintenance work causes a new loss of habitat function, value, or quantity by habitat type that is not associated with the original construction of the structure; or

(ii) The maintenance work does not comply with subsection (3)(g) in this section.

(i) Removal of a human-made or engineered structure does not require compensatory mitigation. However, the department may require bank resloping, revegetation, and other job site stabilization measures after structure removal.

(j) The department may require monitoring to determine the extent and severity of impacts and the effectiveness of the compensation projects. The department may require a monitoring and contingency plan to ensure the compensatory mitigation meets the performance goals and objectives specified in the HPA. This plan may be part of a larger mitigation plan.

(5) Mitigation plans:

(a) The department may require a mitigation plan for projects with ongoing, complex, and experimental mitigation actions.

(b) The department must notify a person in writing if a mitigation plan is required and specify what the plan must include if a mitigation plan was not submitted with the application.

(c) When reviewing a mitigation plan under RCW 77.55.021, the department must, at the request of the applicant, follow the guidance contained in RCW 90.74.005 through 90.74.030. Pursuant to RCW 90.74.020, a mitigation plan must do the following:

(i) Guarantee long-term viability of the created, restored, enhanced, or preserved habitat, including assurances for protecting any essential habitat functions and values defined in the mitigation plan;

(ii) Provide long-term monitoring of any created, restored, or enhanced mitigation site; and

(iii) Be consistent with the local comprehensive land use plan and any other applicable planning process in effect for the development area, such as an adopted subbasin or watershed plan.

(d) When making a permit decision, the department must consider, pursuant to RCW 90.74.020, whether the mitigation plan provides equal or greater habitat functions, value, and quantity by habitat type compared to the existing conditions. This consideration must be based upon the following factors:

(i) The relative value of the mitigation for the target fish life, in terms of the habitat functions, value, and quantity by habitat type;

(ii) The compatibility of the proposal with broader resource management and habitat management objectives and plans, such as existing resource management plans, species recovery plans and associated habitat restoration strategies, watershed plans, critical areas ordinances, the forestry riparian easement program, the riparian open space program, the family forest fish passage program, and shoreline master programs;

(iii) The ability of the mitigation to address scarce habitat functions or types within a watershed;

(iv) The benefits of the proposal to the broader watershed landscape, including the benefits of connecting various habitat units and reducing fish life-limiting habitats;

(v) The benefits of implementing advance compensatory mitigation before the project's anticipated impacts occur; and

(vi) The significance of any negative impacts to nontarget fish life.

(e) A mitigation plan may be approved through a memorandum of agreement between a person and the department.

(f) The department will require a memorandum of agreement between an applicant and the department if mitigation actions, including monitoring, exceed the five-year statutory time limitation of the HPA.

Technical provisions are avoidance and minimization ((mitigation)) measures ((commonly)) used to protect fish life. WAC 220-660-100 through 220-660-450 are common technical provisions ((listed by))for typical hydraulic projects((types)). All projects will also be reviewed relative to the provisions of WAC 220-660-080. The department will require ((certain)) technical provisions ((depending upon))relevant to the individual proposal and the site characteristics. ((Additional))The department will also include special technical provisions ((may be included)) to address project-specific and site-specific conditions not adequately mitigated by the common technical provisions. ((Those provisions must be in the HPA.)) The department may apply saltwater provisions listed in WAC 220-660-310 through 220-660-450, in addition to any project-specific and site-specific technical provisions, to a project in tidally influenced areas upstream of river mouths and the mainstem Columbia River downstream of Bonneville Dam.

(1) Description:

(a) Freshwater habitats of special concern provide essential functions important in the developmental life histories of ((twenty-two)) priority fish species. Priority fish species include species that are listed under state and federal endangered species laws, and species of recreational, commercial, or tribal importance.

(b) The presence of freshwater habitats of special concern or adjacent areas with similar characteristics may restrict project type, design, location, and timing. These restrictions also may benefit other fish species that use these habitats. The department may determine the location of such habitats by a site visit, and/or by considering maps, publications, and other available information.

(2) Fish life concerns:

(a) All fish and shellfish have special habitat requirements related to water quantity and quality (including temperature) and to the physical features of the stream or body of water in which they live. For example, salmon and steelhead spawn and live for a time in a stream before going to the ocean. They require an ample supply of clean, cool, well-oxygenated water. Adults need clean gravel in which to spawn and juvenile fish require instream cover such as tree parts, boulders, or overhanging banks in which to hide from predators. Vegetated stream banks shade the water from the warming effects of the sun. Insects drop off overhanging vegetation and provide food. When juvenile salmon or steelhead enter saltwater, their habitat requirements change. During this critical transition period, they must have shallow, nearshore waters where they can migrate, school, feed, and seek protection from larger fish. Each species of fish and shellfish has similar, yet unique requirements. They have become adapted to and require these natural conditions as a result of the ((ten thousand))10,000 years of evolution since the last ice age. The degradation of any one of the elements of their required habitat results in reduced numbers of fish and shellfish.

(b) Construction activity in or near the water has the potential to kill fish or shellfish directly. More importantly, this activity can also alter the habitat that fish and shellfish require. Direct damage or loss of habitat results in direct loss of fish and shellfish production. Direct killing of fish or shellfish is usually a one-time loss. Damaged habitat, however, can continue to cause lost production of fish and shellfish for as long as the habitat remains altered.

(3) Freshwater habitats of special concern:

(a) The following habitats serve essential functions in the developmental life histories of ((twenty-two)) priority fish species:

(i) Spawning habitat;

(ii) Rearing habitat;

(iii) Migration corridors;

(iv) Cover and shelter provided by large woody debris, live tree roots, deep pools, shallow water, undercut banks, overhanging vegetation, turbulence, and large interstitial areas in cobble or boulder substrate;

(v) Off-channel habitat including wall-based channels, flood swales, side channels, and flood plain spring channels;

(vi) Native aquatic vegetation beds; and

(vii) Native riparian vegetation zones.

(b) The following are important geomorphic processes that form and maintain freshwater habitats of special concern:

(i) Woody material sources, delivery, and transport; and

(ii) Sediment sources, delivery, and transport.

(c) A person may request information from the department about the location of priority fish species and freshwater habitats of special concern. Information about priority fish species is also available on the department's website.

(1) Description: Only applicable common construction provisions will be applied to a specific hydraulic project. Common construction provisions include job site access, equipment use, construction materials, sediment and erosion control containment, in-water work area isolation, fish removal, job site repair, and revegetation.

(2) Fish life concerns: Construction and other work can negatively affect fish life. Some activities can kill or injure fish while others can cause behavioral changes that reduce fish growth and survival. Some activities can damage the habitat used for spawning and egg incubation, rearing, feeding, hiding from predators, and migration.

(3) Staging areas: Establish staging areas (used for activities such as equipment storage, vehicle storage, fueling, servicing, and hazardous material storage) in a location and manner that will prevent contaminants such as petroleum products, hydraulic fluid, fresh concrete, sediments, sediment-laden water, chemicals, or any other toxic or harmful materials from entering waters of the state.

(4) Job site access:

(a) Use existing roadways or travel paths whenever feasible. If not feasible, minimize the number of new temporary access roads constructed.

(b) The design and location of new temporary access roads must follow the mitigation sequence to protect waters of the state from erosion and delivery of sediment.

(c) Clearly mark boundaries to establish the limit of work associated with site access and construction.

(d) Limit removal of native vegetation to one side of the channel to maintain the best shade coverage whenever feasible. Locate the project access site to minimize the need to remove woody vegetation. Woody vegetation greater than four inches diameter that must be removed to construct the hydraulic project must be marked in the field by the applicant and approved for removal by the department.

(e) Retain all natural habitat features on the bed or banks including large woody material and boulders. These natural habitat features may be moved during construction but they must be placed near the preproject location before leaving the job site.

(5) Equipment use:

(a) Confine the use of equipment to specific access and work corridors to protect riparian, wetland, and aquatic vegetation.

(b) If wet or muddy conditions exist, in or near a riparian zone or wetland area, use equipment that reduces ground pressure whenever feasible.

(c) Check equipment daily for leaks and complete any required repairs in an upland location before using the equipment in or near the water.

(d) Equipment used in or near water must use environmentally acceptable lubricants composed of biodegradable base oils. These are vegetable oils, synthetic esters, and polyalkylene glycols. The department may waive this requirement for a small project that has minimal use of equipment in or near the water if the duration of the project is ((forty-eight))48 hours or less or if containment prevents the lubricants from entering waters of the state.

(6) Construction materials:

(a) Store all construction and deconstruction material in a location and manner that will prevent contaminants such as petroleum products, hydraulic fluid, fresh cement, sediments, sediment-laden water, chemicals, or any other toxic or harmful materials from entering waters of the state.

(b) Do not stockpile construction material waterward of the OHWL in waters of the state unless authorized by the department.

(c) Use only clean, suitable material as fill material (no trash, debris, car bodies, tires, asphalt, concrete, etc.).

(d) If the department approves the use of angular rock, the rock must be large enough and installed to withstand the 100-year peak flow or other design flow approved by the department.

(e) To prevent leaching, construct forms to contain any wet concrete. Place impervious material over any exposed wet concrete that will come in contact with waters of the state. Forms and impervious materials must remain in place until the concrete is cured.

(f) Do not use wood treated with oil-type preservative (creosote, pentachlorophenol) in any hydraulic project. Wood treated with waterborne preservative chemicals (ACZA, ACQ) may be used if the western wood preservers institute has approved the waterborne chemical for use in the aquatic environment. The manufacturer must follow the western wood preservers guidelines and the best management practices to minimize the preservative migrating from treated wood into aquatic environments. To minimize leaching, wood treated with a preservative by someone other than a manufacturer must follow the field treating guidelines. These guidelines are available at www.wwpinstitute.org.

(g) The department discourages the use of whole tires. However, products made from recycled tires specifically manufactured for use in the aquatic environment are approved by the department.

(7) Construction-related sediment, erosion, and pollution containment:

(a) Unless approved by the department, work in the dry watercourse (when no natural flow is occurring in the channel, or when flow is diverted around the job site).

(b) Protect all disturbed areas from erosion. Maintain erosion and sediment control until work and cleanup of the job site are completed.

(c) When using straw for erosion and sediment control, use only straw that has been certified as free of noxious weeds and their seeds.

(d) If flow conditions arise that are likely to result in unanticipated and unpreventable erosion or siltation of waters of the state, all hydraulic project activities must stop except those needed to control erosion and siltation.

(e) Prevent contaminants from the project, such as petroleum products, hydraulic fluid, fresh concrete, sediments, sediment-laden water, chemicals, or any other toxic or harmful materials, from entering or leaching into waters of the state.

(f) Use tarps or other methods to completely contain treated wood, sawdust, trimmings, and drill shavings.

(g) Route the construction water (wastewater) from the project to an upland area above the limits of anticipated floodwater. Remove fine sediment and other contaminants before discharging the construction water to waters of the state.

(h) Deposit waste material from the project, such as construction debris, silt, excess dirt, or overburden, in an upland area above the limits of anticipated floodwater unless the material is approved by the department for reuse in the project. Do not burn wood treated with preservatives, trash, waste, or other deleterious materials waterward of the OHWL.

(i) Deposit all trash from the project at an appropriate upland location.

(j) Prevent transporting and introducing aquatic invasive species by thoroughly cleaning vessels, equipment, boots, waders, and other gear before removing the gear from the job site.

(8) In-water work area isolation using block nets:

(a) Do not install block nets at sites with heavy vegetation, large cobble or boulders, undercut banks, or deep pools unless nets can be secured and maintained.

(b) The department must determine the maximum size of the block net opening. The size of the opening depends on the bypass design, the purpose of the block net, and the fish species likely to be present.

(c) Install block nets at sites that have reduced flow volume or velocity, uniform depth, and good accessibility.

(d) Install a downstream block net if fish may reenter the work area from downstream.

(e) After the first block net is secured at the upstream end, use a second block net to herd fish downstream and out of the project area.

(f) Install the block nets at an angle to the direction of flow (not perpendicular to the flow) to avoid entrapping fish in the net.

(g) To anchor block nets, place bags filled with clean round gravel along the bottom of the nets.

(h) Secure block nets along both banks and the channel bottom to prevent failure from debris accumulation, high flows, and/or flanking.

(i) To keep fish out of the job site, leave block nets in place until the work is complete and conditions are suitable for fish.

(j) Check block nets at least three times a day for entangled fish and accumulated debris.

(9) In-water work area isolation using a temporary bypass:

(a) Isolate fish from the work area by using either a total or partial bypass to reroute the stream through a temporary channel or pipe.

(b) The hydraulic capacity of the stream bypass must be equal to or greater than the peak flow event expected when the bypass will be operated. The department may require a person to conduct a hydrologic analysis to determine the magnitude of this flow event. The department will not require hydraulic analysis for a bypass on a stream with low flow.

(c) Provide fish passage during times of the year when fish are expected to migrate.

(d) Sequence the work to minimize the duration of dewatering.

(e) Use the least-impacting feasible method to temporarily bypass or exclude water from the work area. Consider the physical characteristics of the site and the anticipated volume of water flowing through the work area.

(f) Design the temporary bypass to minimize the length of the dewatered stream channel.

(g) During all phases of bypass installation and decommissioning, maintain flows downstream of the project site to ensure survival of all downstream fish.

(h) Install the temporary bypass before starting other construction work in the wetted perimeter.

(i) The department may require the installation of a cofferdam or similar device at the upstream and downstream end of the bypass to prevent backwater from entering the work area.

(j) Return diverted water to the channel immediately downstream of the work area. Dissipate flow energy from the diversion to prevent scour or erosion of the channel and bank.

(k) If the diversion inlet is a gravity diversion that provides fish passage, place the diversion outlet where it facilitates gradual and safe reentry of fish into the stream channel.

(l) If the bypass is a pumped diversion it must run continuously, once started, until it is no longer necessary to bypass flows. This requires back-up pumps on-site and ((twenty-four))24-hour monitoring for overnight operation.

(m) If the diversion inlet is a pump diversion in a fish-bearing stream, the pump intake structure must have a fish screen installed, operated, and maintained in accordance with RCW 77.57.010 and 77.57.070. Screen the pump intake by one of the following:

(i) Perforated plate: 0.094 inch (maximum opening diameter);

(ii) Profile bar: 0.069 inch (maximum width opening); or

(iii) Woven wire: 0.087 inch (maximum opening in the narrow direction).

(iv) The minimum open area for all types of fish screens is ((twenty-seven))27 percent. The screened intake must have enough surface area to ensure that the velocity through the screen is less than 0.4 feet per second.

(n) The fish screen must remain in place whenever water is withdrawn from the stream through the pump intake.

(o) Maintain fish screens to prevent injury or entrapment of fish.

(p) Remove fish screens on dewatering pumps in the isolated work area only after all fish are safe and excluded from the work area.

(q) Isolate pump hose intakes with block nets so that fish do not get near the intake.

(r) Before restoring water to the work area, stabilize the bed with clean material sized to match undisturbed sediments.

(s) Complete all in-water and channel restoration work before rewatering the work area.

(10) In-water work area isolation using a cofferdam structure:

(a) Use modeling to determine the impact of the cofferdam or similar device on water-surface elevations during all anticipated flows. The department will not require modeling for a cofferdam installed in a stream with low flow.

(b) When designing the cofferdam or similar device, consider the infiltration rate of seepage flow from the riverbed and banks.

(c) Install and remove cofferdams or similar devices in a manner that maintains water quality.

(11) In-water work without a bypass or cofferdam: In the following instances, the department will not require the use of a cofferdam, bypass, or similar structure to separate the work area from waters of the state:

(a) When installing a cofferdam, bypass, or similar structure would cause greater impacts to fish life than it would prevent;

(b) When the work area is in deep or swiftly flowing water;

(c) When turbidity is not a concern;

(d) When fish can be excluded by nets or screens; or

(e) When fish are not present.

(12) Fish removal:

(a) All persons participating in fish capture and removal must have training, knowledge, and skills in the safe handling of fish.

(b) If electrofishing will be conducted, a person with electrofishing training must be on-site to conduct or direct all electrofishing activity.

(c) If personnel are available, the department and affected tribes may help capture and move fish life from the job site.

(d) Place block nets upstream and downstream of the in-water work area.

(e) Capture and safely move fish life from the work area to the nearest suitable free-flowing water.

(f) The department will require all person(s) removing fish from a job site to follow an approved protocol. An approved protocol is available on the department website. A person may submit another protocol with their application. The department will approve another protocol if it provides equal or better fish protection. The protocol will be approved by the department in the HPA.

(13) Demobilization and cleanup:

(a) Restore the disturbed bed, bank, and riparian zones as close as possible to preproject condition unless modified elevations and contours are authorized by the department in the approved construction drawings.

(b) Completely remove any temporary fill and return the affected areas to preproject elevation and contours. Fill material must be removed before the end of the in-water timing window if the fill material could erode into or deliver sediment-laden water into waters of the state.

(c) By the end of the in-water work period, abandon temporary roads in wet or flood-prone areas.

(d) By the end of the in-water work period, remove all temporary stream crossings and restore the bed and banks to preproject condition.

(e) Upon completion of the project, remove all materials or equipment from the site and dispose of all excess spoils and waste materials in an upland area above the limits of anticipated floodwater.

(f) To prevent fish from stranding, backfill trenches, depressions, and holes in the bed that may entrain fish during high water or wave action.

(g) Removed or replaced structures and associated materials must not reenter waters of the state unless approved by the department.

(h) To minimize sediment delivery to the stream or stream channel, do not return in-stream flows to the work area from a bypass, cofferdam or similar structure until all in-channel work is completed and the bed and banks are stabilized.

(i) Using a proven methodology, replace native riparian zone and aquatic vegetation, and wetland vascular plants (except noxious weeds) damaged or destroyed by construction. The department may require a vegetation monitoring and contingency plan.

(j) The department must approve species composition, planting densities, and a maintenance plan for replanting on a site-specific basis. The species composition should be similar to the surrounding native vegetation whenever feasible.

(k) Complete replanting during the first dormant season (late fall through late winter) after project completion. Maintain plantings for at least three years to ensure at least ((eighty))80 percent of the plantings survive. Failure to achieve the ((eighty))80 percent survival in year three will require that a person submit a plan with follow-up measures to achieve requirements or reasons to modify requirements.

(l) The department may waive the requirement to plant vegetation where the potential for natural revegetation is adequate or where other factors preclude it.

(m) The department may require fencing or other structures to prevent livestock, wildlife, or unauthorized persons from accessing the replanted riparian and wetland sites until the plantings are well established.

(n) Remove temporary erosion and sediment control methods after job site is stabilized.

(14) Required permittee notification: If a fish kill occurs or fish are observed in distress at the job site, immediately stop all activities causing harm. Immediately notify the department of the problem. If the likely cause of the fish kill or fish distress is related to water quality, also notify the Washington ((military department)) emergency management division at 1-800-258-5990. Activities related to the fish kill or fish distress must not resume until the department gives approval. The department may require additional measures to mitigate impacts.

The requirements in this section apply to location, design, and construction of permanent and seasonal docks, piers, ramps (gangways), floats, watercraft lifts, and mooring buoys.

(1) Description: Docks are structures that are fixed to the shoreline but floating upon the water. Piers are fixed, piling-supported structures. Floats (rafts) are floating structures that are moored, anchored, or otherwise secured in the water that are not directly connected to the shoreline. A ramp is a structure that connects a pier or shoreline to a float and provides access between the two. Pilings usually associated with these structures are timber, steel, reinforced concrete, or composite posts that are driven, jacked, or cast vertically into the bed. A watercraft lift is a structure that lifts boats and personal watercraft out of the water. A mooring buoy is a structure floating on the surface of the water that is used for private and commercial vessel moorage.

(2) Fish life concerns:

(a) Over-water and in-water structures can alter physical processes that create or maintain habitat that supports fish life. These processes include light regime, hydrology, substrate conditions, and water quality. However, light reduction is a main impact to fish life at critical life stages. Light reduction, or shading, by over-water or in-water structures reduces survival of aquatic plants. Aquatic plants provide food, breeding areas, and protective nurseries for fish life.

(b) Shallow water provides juvenile fish a refuge from predators like larger fish. Over-water and in-water structures can alter movement of juvenile salmon, steelhead, and other fish species. Structures grounding on the bed can physically block migration and cause other impacts. The light/dark contrast of shading/no shading of over-water and in-water structures can affect migration behavior. Fish respond by moving into deeper water which increases the risk of predation. These structures may increase the exposure of juvenile salmon, steelhead, and other small fish to predators by providing predator habitat.

(3) Residential and public recreational dock, pier, ramp, float, watercraft lift and buoy design - General:

(a) The design and location of structures must follow the mitigation sequence to protect freshwater habitats of special concern.

(b) Design and locate structures to protect fish spawning areas.

(c) Design and locate structures to protect juvenile salmonid migration, feeding, and rearing areas where shading impacts are a concern.

(i) Limit the width of residential piers and docks to six feet wide for the first 30 feet from the shoreline (measured from mean low water). Limit the width of recreational piers to the minimum width needed to accommodate the intended use.

(A) In certain river systems alternative residential pier and dock criteria may apply.

(B) For the Columbia River, limit the width of residential piers and docks to six feet wide for the first 50 feet from the shoreline. Docks must have 20 feet of water depth below them (both criteria measured at mean low water).

(ii) Piers must extend far enough from the shoreline so floats do not impact juvenile salmonid migration, feeding, and rearing areas. Grounding of floats is approved in reservoirs and impoundments only at times of the year when the water level is dropped.

(iii) The underside of pier must be at least one and one-half feet above the OHWL elevation unless prohibited by local land use regulations.

(iv) The department will require residential pier, dock, ramp and float designs to include grating. The department may require public recreational pier, dock, ramp and float designs to include grating.

(A) North/south oriented piers (338 to 22 degrees, or 158 to 202 degrees) greater than four feet in width must have at least 30 percent of the entire deck surface covered in functional grating. The grating must be installed parallel to the length of the pier for the entire length of the pier.

(B) Northeast/southwest, northwest/southeast and east/west oriented piers (23 to 157 degrees, 203 to 337 degrees) must have at least 50 percent of the entire deck surface covered in functional grating regardless of width. The grating must be installed parallel to the width of the pier, evenly spaced along the entire length of the pier.

(C) In water bodies with a high density of piers and docks, the department may require that grating cover entire deck surface of the pier or dock.

(D) Limit the width of residential ramps to four feet wide. Limit the width of public recreational ramps to the minimum width needed to accommodate the intended use. Cover the entire ramp surface with grating.

(E) A dock or float six feet wide or narrower must have at least 30 percent of the deck surface covered in functional grating. A dock or float wider than six feet (up to eight feet wide) must have at least 50 percent of the deck surface covered in functional grating. The grating material's open area must be at least 60 percent. In some water bodies the department may require a higher proportion of grating. Locate flotation under the solid decked area only. Orient grating so the lengthwise opening maximizes the amount of light penetration. Any objects that are not part of the structure on, above, or below the grating should not block light penetration.

(F) If only the minimum deck surface area described in (c)(iv) of this subsection is grated, the grating material's open area must be at least 60 percent unless the grating covers more than the minimum deck area. If the grating covers more than the minimum deck surface area, the grating material's open area can be reduced to at least 40 percent open area.

(d) If artificial nighttime lighting is used in the design, use low-intensity lights that are located and shielded to prevent light from attracting fish, unless there are safety constraints.

(e) Flotation for the structure must be fully enclosed and contained in a shell. Flotation containing expanded or extruded plastic foam must be enclosed in a shell made of plastic with a minimum thickness of 0.15 inches, concrete, aluminum, or steel. The shell must prevent breakup or loss of the flotation material into the water. The shell must not be readily subject to damage by ultraviolet radiation and abrasion.

(f) The design must not include skirting including batter fencing constructed around piers, docks, or floats unless approved by the department.

(g) Embedded anchor(s) or other approved anchor(s) or piling may hold floats in place.

(h) The design should not use treated wood for the decking of the structure. The design may use treated wood for structural elements. Treated wood structural elements subject to abrasion by vessels, floats, or other objects must incorporate design features to minimize abrasion of the wood.

(i) The structure must have been usable at the site within the 12 months immediately before the time of application submittal to be considered a replacement structure. Usable means no major deterioration or section loss in critical structural components is present.

(j) Replacement of more than 33 percent or 250 square feet of decking or replacement of decking substructure requires installation of functional grating in the replaced portion only. The grating must conform to the requirements in this section.

(4) Piling design:

(a) Use the smallest diameter and number of pilings required to construct a safe structure.

(b) Steel piling used to construct residential docks should not exceed six inches in diameter. Limit the diameter of steel piling used to construct public recreational docks to the minimum width needed to accommodate the intended use.

(c) The use of creosote or pentachlorophenol piling is prohibited. New and replacement piling can be steel, concrete, recycled plastic, and/or untreated or department-approved treated wood.

(d) Treated wood piling must incorporate design features to minimize abrasion of the piling from contact with vessels, floats, or other objects.

(e) All pilings must be fitted with devices to prevent perching by fish-eating birds.

(5) Watercraft lift design:

(a) The design of the watercraft lift/grid must follow the mitigation sequence to protect juvenile salmonid migration, feeding, and rearing areas where shading impacts are a concern.

(b) The bottom of the watercraft lift/grid must be at least one foot above the bed.

(c) Use the minimum number of pilings needed to support the watercraft lift/grid.

(6) Mooring buoy design:

(a) In water bodies where mooring buoy systems might damage the bed and native submerged aquatic vegetation, locate and design the buoy system to minimize damage.

(i) Locate the buoy deep enough to prevent vessel grounding.

(ii) Design and install the buoy system with mid-water floats so that anchor lines do not drag.

(iii) In areas with native submerged aquatic vegetation, use an embedment-style mooring anchor instead of a surface-style mooring anchor.

(iv) Adequately size the mooring to prevent the anchor from shifting or dragging along the bed.

(b) If the department authorizes the use of a concrete anchor, use a precast concrete anchor.

(c) The mooring buoy must have a shell that is not readily subject to damage by ultraviolet radiation and abrasion caused by rubbing against vessels, the bed, and/or waterborne debris.

(7) Residential and public recreational docks, pier, ramp, float, watercraft lift, and buoy construction:

(a) Operate and anchor vessels and barges during construction in a manner that protects native aquatic vegetation.

(b) Reestablish the pier or dock centerline during the construction phase using the same methodology used to establish the centerline on the construction drawings.

(c) When installing steel piling, use of a vibratory hammer or water jet to drive piling is preferred.

(d) If impact pile driving is needed, set the drop height to the minimum needed to drive the piling.

(e) Use appropriate sound attenuation to minimize harm to fish from impact pile-driving noise.

(f) To avoid attracting fish to lights at night, limit impact pile driving to daylight hours whenever feasible.

(g) The department may require the following when removing piling:

(i) Use a vibratory or water jet system to dislodge piling whenever feasible.

(ii) After removal, place the piling on a construction barge or other dry storage site. Piling removed from the substrate must be moved immediately from the water into a barge or other dry storage site. The piling must not be shaken, hosed off, left hanging to dry or any other action intended to clean or remove adhering material from the piling.

(iii) If a treated wood piling breaks during extraction, remove the stump from the water column by fully extracting the stump or cut it three feet below the substrate and cap all buried stumps with clean sediment that matches the native material.

(iv) Fill holes left by piling extraction with clean sediment that matches the native material whenever feasible.

(h) Securely anchor docks, floats, and mooring buoys.

(i) If the department authorizes the use of a concrete anchor, use a precast concrete anchor.

(j) Dispose of removed docks, piers, ramps, floats, lines, chains, cables, and mooring anchors in an upland disposal site.

(k) Place floats and buoys removed seasonally in an upland area. Do not store on the beach.

(1) Description: Surface water diversions are common instream features in agricultural areas where the water is used for irrigation. Throughout the state, people also divert water for other agricultural, hydropower, industrial, recreational, residential, municipal, and hatchery uses. A water right must be obtained prior to diverting water of the state.

(2) Fish life concerns: To protect fish life, including salmon and steelhead, Washington state law (RCW 77.57.070 and 77.57.010) requires that all surface water diversions be screened to prevent fish from being drawn into the diversions where they are at risk for injury or death from entrainment. Other elements of a water diversion can result in direct and indirect sources of injury or mortality. Wing and check dams can prevent or delay upstream and downstream fish passage increasing predation, and fish may be physically injured or dewatered by active cleaning mechanisms or in bypass mechanisms.

(3) Limit of department authority over water diversions and intakes:

(a) A written HPA is not required for emergency water diversions during emergency fire response. When possible, a person must notify the department before the emergency diversion. When advance notification is not possible, a person must notify the department within ((twenty-four))24 hours of the emergency diversion, at the ((twenty-four))24-hour hotline phone number at ((360-902-2536))1-800-514-8140.

(b) The department cannot apply the hydraulic code to limit the amount or timing of water diverted under a water right, other than ensuring that there is sufficient bypass flow to return fish back to the stream of origin from a water diversion. However, the department requires an HPA for work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state, or that will utilize any of the waters of the state to divert water under a water right.

(c) Regulating water flow from a permanent permitted irrigation structure by operating valves, or manipulating stop logs, check boards, headgates, or headboards, does not require an HPA. Any hydraulic project activity related to a change in site conditions, the manner or location of water diversion, a new landowner or contact, or new biological information, will require an HPA modification.

(d) The department must allow a person who has gravel berm dam diversion permitted by the department before January 1994 to continue to have the dam if it complies with the provisions of the HPA. However, the department can provision the approval of gravel berms.

(4) Water diversion and intake design, construction, operation, and maintenance:

(a) A diversion structure must not hinder upstream and downstream adult and juvenile fish passage. If passage problems develop, the department may require a person to modify the check or wing dam.

(b) At pump stations, screens, and headgate areas, a person may use excavation equipment or suction dredge to remove accumulated silts and gravel from within ((twenty))20 feet of the point of diversion unless otherwise permitted. Place material removed so it will not reenter waters of the state. The water diversion must be open during this work to capture disturbed sediment within the irrigation diversion and prevent loss of sediment into the stream.

(c) Equip and maintain any device used for diverting water from a fish-bearing watercourse with a fish screen approved by the department to prevent passage or impingement of fish into the diversion device. Maintain the fish screen and associated structures as necessary to achieve the approach velocity, a functional bypass, and fish protection criteria.

(d) Irrigation diversions must not create blind diversion channels leading to the fish screen. Diversions must be equipped with a fish bypass mechanism to provide opportunity for fish entrained within a delivery canal to volitionally return to the stream.

(e) Gravity diversions.

(i) Wing and check dams.

(A) Prior to constructing a wing or check dam, contact the department for opportunity to assess the site and determine whether active spawning and incubation is occurring at the site.

(B) Maintain diversion canals to maximize hydraulic gradient in the diversion canal to minimize the need for work within the natural watercourse. Maintenance includes removing sediment and debris at the point of diversion.

(C) Unless a gravel dam is approved, temporary wing or check dams for irrigation may be constructed using a combination of jersey barriers, concrete blocks, steel posts and wood, pinned straw bales, plastic sheeting, and similar inert materials.

(D) Where gravel dams are permitted, they must be constructed with gravels available on-site waterward of the OHWL, or with clean round gravel transported to the site. Limit bed disturbance to the minimum needed to achieve the provisions of the water right.

(E) Bed excavation depth to construct an irrigation diversion must not exceed ((eighteen))18 inches unless otherwise approved by the department to avoid destabilizing the stream bed.

(F) Earth or dirt must not be used to seal check or wing dams. Straw, plastic sheeting, filter fabric, and similar inert materials may be used to seal wing or check dams.

(G) Do not use logs or other woody material waterward of the OHWL to construct the dam unless approved by the department. Large wood from upland locations may be used to create a wing or check dam.

(H) If logs or other large woody material block water flow into a ditch or inhibit construction, a person may relocate them within the OHWL.

(I) Wing or check dams must be constructed in a manner that does not cause bank erosion.

(J) All foreign materials, except clean or native gravel, used to construct wing or check dams must be removed within seven days after the end of the irrigation season.

(ii) Diversion dams must not extend completely across the stream unless needed to seal the dam to achieve the water right.

(iii) Graveled wing dams must be removed or breached down to the natural bed elevation in at least two locations at the end of the irrigation season.

(f) Start-up and shut-down of water diversions.

(i) Clean and maintain the fish bypass mechanism prior to diverting water to ensure it is operational and will prevent injury or stranding of fish life.

(ii) Ensure that there is sufficient flow within the bypass mechanism to safely return fish life from the fish screen to state waters.

(iii) If at any point during water diversion there is insufficient instream flow to provide opportunity for fish life to migrate downstream, close the fish bypass until there is sufficient flow.

(iv) Slowly ramp down flows at the end of the irrigation season in a manner that prevents stranding or predation of fish life within a canal above the fish screens or within the fish bypass mechanism. Do not close the head gate completely until fish have either left the canal and bypass or are salvaged and returned to the stream. Head gates located downstream of the fish screen may be closed immediately at the end of the irrigation season.

(1) Description: Utility ((lines))crossings are cables and pipelines that transport gas, telecommunications, fiber optics, power, sewer, oil, and water lines from one side of a watercourse to the other. An HPA is not required for utility crossings attached to bridge structures.

(2) Fish life concerns:

(a) Utility crossings pose a risk to fish life and the habitat that supports fish life from potential substrate changes, destabilization of stream banks and channels, loss of riparian zone vegetation, and release of excessive sediment after stream flows resume. Utilities not buried below bed scour depth can require rock to protect them. This reduces habitat, inhibits channel processes, and can become fish passage barriers due to the rock or the pipeline.

(b) Trenching through stream banks and channels alters habitat and substrate characteristics, and therefore their productivity and should be avoided. Trenching may also cause the proportion of surface and subsurface flows to shift, altering stream hydrology. The department prefers trenchless crossing methods such as high-pressure directional drilling or punch and bore crossings that cause very little disturbance to the stream bed and banks.

(3) Utility ((line))crossing design:

(a) Align the conduit as perpendicular as possible to the watercourse.

(b) Avoid crossing at meander bends, braided streams, alluvial fans, active flood plains, or any other area that is inherently unstable and may lead to eroding and scouring the stream bed.

(c) Avoid areas of groundwater upwelling or locations within ((one hundred))100 feet upstream of documented fish spawning areas.

(4) Utility ((line))crossing construction:

(a) Install the conduit well below scour depth of the watercourse to prevent natural scouring of the stream bed from exposing the pipeline or cable.

(b) If construction involves boring or jacking:

(i) Isolate pits from surface water flow to prevent bore hole collapse; and

(ii) Before discharging wastewater to state waters, route wastewater from project activities and dewatering to an area outside the watercourse to allow removal of fine sediment and other contaminants.

(c) If construction involves trench excavation:

(i) Trench widths should be as narrow as feasible to accommodate the pipe/line and achieve the depth specified in the approved plan.

(ii) Excavate trenches in the dry or isolate them from the flowing watercourse by installing a cofferdam, culvert, flume, or other approved method;

(iii) Plowing, placement, and covering must occur in a single pass of the equipment;

(iv) Limit disturbance of the bed and banks to the amount needed to complete the project. Before returning flow, backfill trenches with approved materials and return the bed to preproject condition.

(v) Dispose of excess spoils upland or on a barge so they will not reenter waters of the state.

(vi) Isolate the conduit approach trench from the watercourse until the conduit is laid across the watercourse.

(d) If construction involves directional drilling:

(i) Design the drill path to an appropriate depth below the watercourse to minimize the risk of frac-out and to a depth to prevent exposure of the line from natural scouring of the stream bed; and

(ii) Locate the drill entry and exit points away from the banks of the watercourse to minimize impact on these areas.

(1) Description: The department applies timing windows to reduce the risk of impacts to fish life at sensitive life stages. In-water work is not allowed during critical periods of the year unless a person can take mitigation measures to eliminate risk during critical periods.

(2) Fish life concerns: Work in or near salt waters of the state can harm fish life at sensitive life stages including spawning, incubation, juvenile migration, rearing, and feeding. Therefore, work must occur at times of the year when the risk to fish life is reduced unless the risk can be avoided.

(3) Authorized work times: The department must specify authorized work times for hydraulic projects when it issues HPAs. The department will allow work waterward of the OHWL for the following times, areas, and species.

(a) Tidal Reference Areas 1 through 17; March 1 through October 15 for projects in or adjacent to documented Pacific sand lance spawning beds.

(b) Tidal Reference Areas 1 through 17; October 15 through May 15 for projects in or adjacent to juvenile lingcod settlement and nursery areas. April 1 through December 31 for projects in or adjacent to lingcod nests.

(c) Tidal Reference Areas 1 through 17; September 30 through March 15 for projects in or adjacent to juvenile rockfish settlement and nursery areas.

(d) Tidal Reference Area 14; October 1 through May 15 for projects in or adjacent to documented razor clam beds.

(e) Tidal Reference Areas 1 through 17; the authorized times and areas for protection of migrating juvenile salmonids in the nearshore, and for projects in documented Pacific herring spawning beds and in or adjacent to documented surf smelt are listed in the following table:

(f) If the surf smelt spawning season for the project location is six months or longer, the department may permit work outside of the authorized work times if:

(i) A department-trained biologist, following the department's intertidal forage fish spawning habitat survey protocol per WAC 220-660-340, conducts a spawning survey at the job site;

(ii) The results of the inspection show that no spawning is occurring or has recently occurred; and

(iii) If the survey shows eggs are not present, the person may start work. The person must start work within ((seventy-two))72 hours of a survey.

(g) In documented intertidal forage fish spawning areas, the department must not allow work during surf smelt spawning seasons shorter than six months or during the Pacific sand lance spawning season. The department will make exceptions for projects receiving emergency, imminent danger, and expedited HPAs.

(h) The department will require an intertidal forage fish spawning bed survey if the job site is adjacent to a documented forage fish spawning bed, the beach at the job site has bed materials similar to the documented beach, and the work will occur during the spawning season.

(i) When specifying authorized work times for hydraulic projects, the department must consider the construction techniques, mitigation measures proposed, location of the project, and characteristics of habitats potentially affected by the project. The department may inspect the work area to evaluate the habitat.

(j) During times when work in waters of the state is prohibited to protect nearshore juvenile salmonid migration, rearing, and feeding areas, the department may permit construction if the structure is located at or landward of the OHWL, and if all construction work is conducted from the landward side of the project.

(k) The department may apply additional timing restrictions to protect other important habitat that supports fish life at a specific site.

(1) Description: Only applicable common construction provisions will be applied to a specific hydraulic project. Common construction provisions include job site access, equipment use, construction materials, sediment and erosion control containment, and job site repair and revegetation.

(2) Fish life concerns: Construction and other work can negatively affect fish life. Some activities can kill or injure fish life while others can cause behavioral changes that reduce growth and survival. Some activities can damage the habitat used for spawning and egg incubation, rearing, feeding, hiding from predators, and migration.

(3) Staging areas: Establish staging areas (used for activities such as equipment storage, vehicle storage, fueling, servicing, and hazardous material storage) at a location and manner that will prevent contaminants such as petroleum products, hydraulic fluid, fresh concrete, sediments, sediment-laden water, chemicals, or any other toxic or harmful materials from entering waters of the state.

(4) Job site access:

(a) Clearly mark boundaries to establish the limit of work associated with site access and construction.

(b) Limit the removal of native vegetation to the minimum amount needed to construct the project. Woody vegetation greater than four inches diameter that must be removed must be marked in the field by the applicant and approved for removal by the department. The department may require this large woody material to be placed on the beach after work is completed. A revegetation plan must be submitted to restore riparian vegetation removed as part of the project.

(c) Retain all natural habitat features on the beach larger than ((twelve))12 inches in diameter including trees, stumps, logs, and large rocks. These natural habitat features may be moved during construction but they must be placed near the preproject location before leaving the job site.

(5) Equipment use:

(a) Use of equipment on the beach area must be held to a minimum and confined to specific access and work corridors.

(b) Check equipment daily for leaks and complete any required repairs before using the equipment in or near the water. Do not complete repairs on the beach.

(c) Equipment used in or near water must use environmentally acceptable lubricants composed of biodegradable base oils. These are vegetable oils, synthetic esters, and polyalkylene glycols. The department may waive this requirement for a small project that has minimal use of equipment in or near the water if the duration of the project is ((forty-eight))48 hours or less or if containment prevents the lubricants from entering waters of the state.

(6) Vessel operation:

(a) Operate vessels in water deep enough to prevent impacts from grounding and propeller wash to seagrass, kelp, and forage fish spawning beds.

(b) Do not deploy anchors or spuds in seagrass, kelp, and forage fish spawning beds.

(c) Maintain anchor cable tension so anchor cables do not drag on the bed.

(7) Construction materials:

(a) Bed material, other than material excavated for bulkhead footings or placement of bulkhead base rock, must not be utilized for project construction or fills. The department may allow placement of dredged material in areas for beneficial uses such as beach nourishment or cleanup of contaminated sediments.

(b) Wet concrete must be prevented from entering waters of the state. Forms for any concrete structure must be constructed to prevent leaching of wet concrete. Impervious material must be placed over any exposed concrete not lined with forms that will come in contact with waters of the state. Forms and impervious material must remain in place until the concrete is cured.

(c) Do not use wood treated with oil-type preservatives (creosote, pentachlorophenol) in any hydraulic project. Wood treated with waterborne preservative chemicals (ACZA, ACQ) may be used if the western wood preservers institute has approved the waterborne chemical for use in the aquatic environment. The manufacturer must follow the western wood preservers guidelines and the best management practices to minimize the preservative migrating from treated wood into aquatic environments. To minimize leaching, wood treated with a preservative by someone other than a manufacturer must follow the field treating guidelines. These guidelines are available at http://www.wwpinstitute.org/.

(d) The department discourages the use of whole tires. However, products made from recycled tires specifically manufactured for use in the aquatic environment are approved by the department.

(8) Construction-related sediment, erosion and pollution containment:

(a) Project activities within the beach area must not occur when the project area, including the work corridor, is inundated by tidal waters unless the work is occurring from a vessel or barge.

(b) Protect all disturbed areas from erosion. Maintain erosion and sediment control until demobilization and cleanup of the job site is completed.

(c) When using straw for erosion and sediment control, use only straw that has been certified as free of noxious weeds and their seeds.

(d) Prevent contaminants from the project, such as petroleum products, hydraulic fluid, fresh concrete, sediments, sediment-laden water, chemicals, or any other toxic or harmful materials, from entering or leaching into waters of the state.

(e) Use tarps or other methods to completely contain treated wood sawdust, trimmings, and drill shavings.

(f) Deposit waste material from the project, such as construction debris, silt, excess dirt, or overburden, in an upland area above extreme high tide waters unless the material is approved by the department for reuse in the project.

(g) Prevent transporting and introducing aquatic invasive species by thoroughly cleaning vessels, equipment, boots, waders, and other gear before removing the gear from the job site.

(9) Demobilization and cleanup:

(a) Reshape beach area depressions created during project activities to preproject beach level upon project completion.

(b) All debris or deleterious material resulting from construction must be removed from the beach area or bed and prevented from entering waters of the state.

(c) Do not burn wood treated with preservatives, trash, waste, or other deleterious materials waterward of the OHWL.

(d) Restore the disturbed bed, bank, and riparian zones as close as possible to their preproject condition unless modified elevations and contours are approved by the department.

(e) Using a proven methodology, replace native riparian zone and aquatic vegetation, and wetland vascular plants (except noxious weeds) damaged or destroyed by construction. The department may require a vegetation monitoring and contingency plan.

(f) The department must approve species composition, planting densities and a maintenance plan for replanting on a site-specific basis. The species composition should be similar to the surrounding native vegetation.

(g) Complete replanting during the first dormant season (late fall through late winter) after project completion. Maintain plantings for at least three years to ensure at least ((eighty))80 percent of the plantings survive. Failure to achieve the ((eighty))80 percent survival in year three will require that a person submit a plan with follow-up measures to achieve requirements or reasons to modify requirements.

(h) The department may waive the requirement to plant vegetation where the potential for natural revegetation is adequate.

(i) The department may require fencing or other structures to prevent livestock, wildlife, or unauthorized persons from accessing the replanted riparian and wetland sites until the plantings are well established.

(j) Remove temporary erosion and sediment control methods after job site is stabilized.

(10) Required permittee notification: If a fish kill occurs or fish are observed in distress at the job site, immediately stop all activities causing harm. Immediately notify the department of the problem. If the likely cause of the fish kill or fish distress is related to water quality, also notify the Washington ((military department)) emergency management division at 1-800-258-5990. Activities related to the fish kill or fish distress must not resume until the department gives approval. The department may require additional measures to mitigate impacts.

This section applies to the design and construction of permanent, seasonal or temporary docks, piers, ramps (gangways), floats, watercraft lifts, and mooring systems.

(1) Description: Docks are structures that are fixed to the shoreline but floating upon the water. Piers are fixed, piling-supported structures. Floats (rafts) are floating structures that are moored, anchored, or otherwise secured in the water that are not directly connected to the shoreline. A ramp is a gangway that connects a pier or shoreline to a float and provides access between the two. Pilings usually associated with these structures are timber, steel, reinforced concrete, or composite posts that are driven or jacked into the bed. A watercraft lift is a structure that lifts boats and personal watercraft out of the water. A mooring buoy is a structure floating on the surface of the water that is used for private and commercial vessel moorage.

(2) Fish life concerns:

(a) Over-water and in-water structures can alter physical processes that create or maintain habitat that supports fish life. These processes include light regime, hydrology, substrate conditions, and water quality. Light reduction is the main impact to fish life at critical life stages. Light reduction or shading by over-water or in-water structures reduces survival of aquatic plants. Aquatic plants provide food, breeding areas, and protective nurseries for fish life.

(b) Shallow water provides juvenile fish a refuge from predators like larger fish. Over-water and in-water structures can alter movement of juvenile salmon, steelhead and other fish species. Structures grounding on the bed can physically block migration and damage forage fish spawning beds. The light/dark contrast of shading/no shading caused by over-water and in-water structures can affect migration behavior. Fish respond by moving into deeper water which increases the risk of predation.

(3) Residential and public recreational pier, ramp, float, watercraft lift and buoy design – Generally:

(a) The department requires that new structures are designed with a pier and ramp to span the intertidal beach, whenever feasible.

(b) The design and location of structures must follow the mitigation sequence to protect salt water habitats of special concern.

(i) Design and locate structures to protect juvenile salmonid migration, feeding, and rearing areas.

(ii) Design and locate structures to protect documented Pacific herring, Pacific sand lance, and surf smelt spawning beds; and rockfish and lingcod settlement and nursery areas.

(iii) The department will require a seagrass/macroalgae habitat survey for all new construction unless the department can determine the project will not impact seagrass and kelp beds, and in herring spawning beds other macroalgae used as spawning substrate. A survey is not required for replacement of an existing structure within its original footprint.

(A) Structures must be located at least 25 feet (measured horizontally from the nearest edge of the structure) and four vertical feet away from seagrass and kelp beds (measured at extreme low water).

(B) In documented herring spawning areas, structures must be located at least 25 feet (measured horizontally from the nearest edge of the structure) and four vertical feet from macroalgae beds on which herring spawn (measured at extreme low water).

(iv) If artificial nighttime lighting is used in the project, use low-intensity lights that are located and shielded to prevent light from attracting fish or disrupting fish migration behavior, unless there are safety constraints.

(v) The design must not include skirting including batter fencing constructed around piers, docks, or floats unless approved by the department. The design should not use treated wood for the decking of the structure. The design may use treated wood for structural elements. Treated wood structural elements subject to abrasion by vessels, floats, or other objects must incorporate design features such as rub strips to minimize abrasion of the wood.

(c) The structure must have been usable at the site within the past 12 months of the time of application submittal to be considered a replacement structure. Usable means no major deterioration or section loss in critical structural components is present.

(d) Replacement of more than 33 percent or 250 square feet of decking or replacement of decking substructure requires installation of functional grating in the replaced section only. The grating must conform to the requirements in this section.

(4) Pier and ramp design:

(a) Design piers to maximize height over the bed to improve light transmission. The bottom of the pier must be at least six feet above the bed at the landward end.

(b) Limit the width of residential piers to no more than six feet wide. Limit the width of recreational piers to the minimum width needed to accommodate the intended use.

(c) North/south oriented piers (338 to 22 degrees, or 158 to 202 degrees) greater than four feet in width must have at least 30 percent of the entire deck surface covered in functional grating. The grating must be installed parallel to the length of the pier for the entire length of the pier.

(d) Northeast/southwest, northwest/southeast, and east/west oriented piers (23 to 157 degrees, 203 to 337 degrees) must have at least 50 percent of the entire deck surface covered in functional grating regardless of width. The grating must be installed parallel to the width of the pier, evenly spaced along the entire length of the pier.

(e) If only the minimum pier deck surface described in (c) or (d) of this subsection is covered, the grating material's open area must be at least 60 percent open area unless grating covers more than the minimum pier deck area of the pier. If the grating covers more than the minimum deck surface area, the grating material's open area can be reduced down to at least 40 percent open area.

(f) Limit the width of residential ramps to four feet wide. Limit the width of public recreational ramps to the minimum width needed to accommodate the intended use. Cover the entire ramp surface with grating.

(5) Float design (floats connected to a pier):

(a) Whenever feasible, place float so that the largest dimension is oriented north/south.

(b) Limit the width of residential floats to eight feet. Limit the width of public recreational floats to the minimum width needed to accommodate the intended use.

(c) Whenever feasible, limit the length of single-family dock floats to 30 feet and joint-use dock floats to 60 feet.

(d) If the design has a float positioned perpendicular to the ramp to serve as a ramp landing, this float must not be more than six feet wide and 10 feet long.

(e) Design floats in intertidal areas with stoppers or support pilings that keep the bottom of the floats at least one foot above the substrate so that the structure will not rest on the bottom.

(f) A float six feet wide or less must have at least 30 percent of the entire deck surface covered in functional grating. A float between six and eight feet wide must have at least 50 percent of the entire deck surface covered in functional grating. Orient grating so the lengthwise opening maximizes the amount of light penetration. Any objects that are not part of the structure on, above, or below the grating should not block light penetration. Flotation must be located under the solid decked area only.

(g) The grating material's open area must be at least 60 percent.

(h) Flotation for the structure must be fully enclosed and contained in a shell. Flotation containing expanded or extruded plastic foam must be enclosed in a shell made of plastic with a minimum thickness of 0.15 inches, concrete, aluminum, or steel. The shell must prevent breakup or loss of the flotation material into the water. The shell must not be readily subject to damage by ultraviolet radiation and abrasion.

(i) Embedded anchor(s), pilings (with stops), and float support/stub pilings may be used to hold floats in place.

(j) If a project uses anchors to hold the float in place, the anchor lines must not rest on the substrate at any time.

(6) Piling design:

(a) Use the smallest diameter and number of pilings required to construct a safe structure.

(b) Steel piling used to construct residential docks should not exceed 12 inches in diameter. Limit the diameter of steel piling used to construct public recreational docks to the minimum diameter needed to accommodate the intended use.

(c) The use of creosote or pentachlorophenol piling is prohibited. New and replacement piling can be steel, concrete, recycled plastic, or untreated or treated wood approved by the department.

(d) Treated wood piling must incorporate design features to minimize abrasion of the piling from contact with vessels, floats, or other objects.

(e) Fit all pilings with devices to prevent perching by fish-eating birds.

(7) Watercraft lift/grid design:

(a) Design the watercraft lift/grid to minimize shading caused by the structure.

(b) The bottom of the watercraft lift/grid must be at least one foot above the bed.

(c) Use the minimum number of piling needed to support the watercraft lift/grid.

(8) Buoy design: In water bodies where buoy systems might damage submerged aquatic vegetation, locate and design the buoy system to minimize damage.

(a) Whenever feasible, use an embedded anchor.

(i) A seagrass/macroalgae habitat survey is not required if an embedment-style mooring anchor is installed. The department will require the diver/installer to locate the anchor so the mooring buoy system will not damage seagrass and kelp beds, and in herring spawning beds other macroalgae used as spawning substrate.

(ii) A seagrass/macroalgae habitat survey is required if a surface style mooring anchor is installed. The survey is needed to ensure the mooring buoy system is installed at a location where seagrass, kelp, and in herring spawning beds other macroalgae used as spawning substrate will not be damaged.

(b) Place the buoy deep enough to prevent vessel grounding.

(c) Locate the buoy to avoid damage from vessel propellers to submerged aquatic vegetation.

(d) Design and install the buoy system with a mid-water float so that anchor lines do not drag.

(e) Adequately size the mooring to prevent the anchor from shifting or dragging along the bed.

(f) If the department authorizes the use of a concrete anchor, use a precast concrete anchor.

(g) The buoy must have a shell that is resistant to ultraviolet radiation (sunlight) and abrasion caused by rubbing against vessels, the bed, and/or waterborne debris.

(9) Replacement floating docks: The department will authorize replacement floating docks, if:

(a) The area of replaced floating dock structure is not expanded;

(b) The replaced floating dock is not relocated within waters of the state without written authorization from the department. The replaced structure must be removed and disposed of upland so it will not reenter state waters;

(c) Floats are designed with stoppers or support pilings that keep the bottom of the floats at least one foot above the substrate so that the structure will not rest on the bottom;

(d) A float six feet wide or less must have at least 30 percent of the entire deck surface covered in functional grating. A float between six and eight feet wide must have at least 50 percent of the entire deck surface covered in functional grating. Orient grating so the lengthwise opening maximizes the amount of light penetration. Any objects that are not part of the structure on, above, or below the grating should not block light penetration. Flotation must be located under the solid decked area only;

(e) The grating material's open area must be at least 60 percent;

(f) Flotation for the structure must be fully enclosed and contained in a shell. Flotation containing expanded or extruded plastic foam must be enclosed in a shell made of plastic with a minimum thickness of 0.15 inches, concrete, aluminum, or steel. The shell must prevent breakup or loss of the flotation material into the water. The shell must not be readily subject to damage by ultraviolet radiation and abrasion.

(10) Residential and public recreational dock, pier, ramp, float, floating dock, watercraft lift, and buoy construction:

(a) The dock or pier centerline must be reestablished during construction using the same methodology used to establish the centerline during the seagrass/macroalgae habitat survey.

(b) When installing steel piling, use of a vibratory hammer is preferred.

(c) If impact pile driving is used, set the drop height to the minimum needed to drive the piling.

(d) Use appropriate sound attenuation to minimize harm to fish from impact pile-driving noise.

(e) To avoid attracting fish to light at night, limit impact pile driving to daylight hours whenever feasible.

(f) The department may require the following during piling removal:

(i) Use of a vibratory system to dislodge piling whenever feasible;

(ii) Place the piling on a construction barge or other dry storage site after the piling is removed. The piling must not be shaken, hosed off, left hanging to dry or any other action intended to clean or remove adhering material from the piling;

(iii) If a treated wood piling breaks during extraction, remove the stump from the water column by fully extracting the stump or cutting it three feet below the substrate and cap all buried stumps with clean sediment that matches the native material;

(iv) Fill holes left by piling extraction with clean sediment that matches the native material whenever feasible;

(v) When removing creosote piling:

(A) Containment booms and absorbent booms (or other oil absorbent fabric) must be placed around the perimeter of the work area to capture wood debris, oil, and other materials released into marine waters as a result of construction activities to remove creosote pilings. All accumulated debris must be collected and disposed upland at an approved disposal site; and

(B) Creosote logs and timbers must be fully suspended during removal so no portion of the log drags through the water or onto the beach.

(g) Securely anchor dock, floats, and mooring buoys.

(h) Dispose of replaced piers, ramps, floats, docks, lines, chains, cables, or mooring anchors in an upland disposal site; and

(i) Place floats and buoys removed seasonally in an upland area. Do not store on the beach.

An informal appeal is an internal department review of a department HPA decision and is conducted under chapter 34.05 RCW (Administrative Procedure Act).

(1) The department recommends that a person aggrieved by a department HPA decision contact the department employee responsible for making the decision before initiating an informal appeal. Discussion of concerns with the department employee often results in a resolution without the need for an informal appeal.

(2) The department encourages a person aggrieved by a department HPA decision to take advantage of the informal appeal process before initiating a formal appeal. However, a person may pursue a formal appeal under WAC 220-660-470 without first obtaining informal review under this section.

This rule does not apply to pamphlet HPAs. A person who disagrees with a provision in a pamphlet HPA may apply for an individual, written HPA.

This rule does not apply to correction requests issued following a technical assistance visit or compliance inspection under WAC 220-660-480.

(3) Requesting an informal appeal.

(a) Any person with legal standing may request an informal appeal of the issuance, denial, provisioning, or modification of an HPA, the rejection of a fish habitat enhancement project application, or a preapplication determination.

(b) Issuance of a stop work order or notice to comply may be informally appealed only by the project proponent who received the notice or order or by the owner of the land on which the hydraulic project is located.

(c) Issuance of a notice of civil penalty may be informally appealed only by the person incurring the penalty.

(4) A request for an informal appeal must be in writing and must be received by the department within ((thirty))30 days from the date of receipt of the decision, order, or notice. "Date of receipt" means:

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

(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence, up to ((forty-five))45 days from the date of mailing. A person's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the department, must constitute enough evidence of actual receipt.

(5) A request for informal appeal must be submitted in one of the following ways:

(a) Mailed to the:

HPA Appeals Coordinator

Department of Fish and Wildlife

Habitat Program

P.O. Box 43234

Olympia, WA 98504-3234;

(b) Email: HPAapplications@dfw.wa.gov; or

(c) ((Fax: 360-902-2946; or

(d))) Hand delivered to the Natural Resources Building, 1111 Washington Street S.E., Habitat Program, Fifth Floor.

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

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

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

(c) The date of the specific department action being contested;

(d) The log number or a copy of the HPA, or a copy of the specific department action that the appellant contests;

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

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

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

(h) The specific relief requested;

(i) The attorney's name, address, email address (if available), and phone number, if the appellant is represented by legal counsel; and

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

(7) Upon receipt of a valid request for an informal appeal, the department may initiate a review of the department action.

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

(9) Informal appeal hearing. If the appeal is received from a person who is not the permittee, or if the appeal involves an order imposing civil penalties, or if a resolution is not reached through the informal conference process, then the HPA appeals coordinator or designee may conduct an informal appeal hearing or review. Upon completion of the informal appeal hearing or review, the HPA appeals coordinator or designee must recommend a decision to the director or designee. The director or designee must approve or decline to approve the recommended decision within ((sixty))60 days of the date the department received the request for informal appeal, unless the appellant agrees to an extension of time. The department must notify the appellant in writing of the decision of the director or designee.

(10) If the department declines to initiate an informal review of its action after receipt of a valid request, or the appellant still wishes to contest the department action following completion of the informal appeal process, the appellant may initiate a formal appeal under WAC 220-660-470. Formal review must be requested within the time periods specified in WAC 220-660-470.

A formal appeal is an appeal to the pollution control hearings board (board) under chapters 34.05 RCW and 371-08 WAC.

(1) The department recommends that a person aggrieved by a department HPA decision contact the department employee responsible for making the decision on the HPA before initiating a formal appeal. Discussion of concerns with the department employee often results in a resolution without the need for a formal appeal.

(2) The department encourages a person aggrieved by a department HPA decision to take advantage of the informal appeal process under WAC 220-660-460 before initiating a formal appeal. However, a person may pursue a formal appeal under this section without first completing the informal appeal process under WAC 220-660-460.

This rule does not apply to pamphlet HPAs. A person who disagrees with a provision in a pamphlet HPA may apply for an individual, written HPA.

This rule does not apply to correction requests issued following a technical assistance visit or compliance inspection, under WAC 220-660-480.

(3) Requesting a formal appeal.

(a) Any person with standing may request a formal appeal of the issuance, denial, provisioning, or modification of an HPA; the rejection of a fish habitat enhancement project application for streamlined processing; a notice of intent to disapprove HPA applications; or a preapplication determination.

(b) Issuance of a stop work order, notice to comply, or notice of intent to disapprove HPA applications, may be formally appealed only by a person who received the order or notice from the department or by the owner of the land on which the hydraulic project is located.

(c) Issuance of a notice of civil penalty may be formally appealed only by the person incurring the penalty.

(4) The recipient of a stop work order must comply with the order immediately upon receipt. However, the board may stay, modify, or discontinue the order upon motion, under such conditions as the board may impose.

(5) A request for formal appeal must be in writing and must be filed with the clerk of the board and served on the department within ((thirty))30 days from the date of receipt of the decision, order, or notice. "Date of receipt" means:

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

(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence, up to ((forty-five))45 days from the date of mailing. A person's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the department, must constitute enough evidence of actual receipt.

(6) The request must be plainly labeled as "Request for Formal Appeal" and, under WAC 371-08-340, must include the following:

(a) The appellant's name, mailing address, email address (if available), and phone number; and if represented by another, the representative's name, mailing address, email address, and phone number;

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

(c) The date of the specific department action being contested;

(d) A copy of the decision, notice, order, or HPA you are appealing, and if appealing a permit decision, a copy of the HPA application;

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

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

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

(h) The specific relief requested;

(i) The signature of the appellant or his or her representative.

(7) Service on the department must be submitted in one of the following ways:

(a) Mailed to:

HPA Appeals Coordinator

Department of Fish and Wildlife

Habitat Program

P.O. Box 43234

Olympia, WA 98504-3234;

(b) Email: HPAapplications@dfw.wa.gov; or

(c) ((Fax: 360-902-2946; or

(d))) Hand delivered to the Natural Resources Building, 1111 Washington Street S.E., Habitat Program, Fifth Floor.

(8) 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 must be within ((thirty))30 days from the date of receipt of the department's written decision in response to the informal appeal.

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

(10) If there is no timely request for an appeal, the department action will be final and nonappealable.