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Washington Hydraulic Project Approval (19-WA-h)

In Washington, a developer may need to obtain a Hydraulic Project Approval (“HPA”) from the Washington Department of Fish and Wildlife (“WDFW”) for “any construction or performance of work that uses, diverts, obstructs, or changes the natural flow or bed of any fresh water or saltwater in the state…” W.R.C. §77.55.011(11); W.R.C. §77.55.021; W.A.C. §220-660-010. “The purpose of the HPA is to ensure that construction or performance of work is done in a manner that protects fish life.” W.A.C. §220-660-010.


The WDFW regulates the natural flow of fresh water and saltwater resources through HPAs pursuant to Washington – Wash. Rev. Code §§ 77.55 et seq., Construction Projects in State Waters; Washington – Wash. Rev. Code §§ 77.55 et seq., Construction Projects in State Waters; and Washington – Wash. Admin. Code §§ 220-660 et seq., Hydraulic Code Rules.

Geothermal

In practice, geothermal developers would rarely need to obtain this approval, however, the approval may be necessary where proposed operations could affect the natural flow of undergroundwater aquifers.


Hydropower

Hydropower developers will likely need to obtain approval for most hydropower projects, as most impoundment, run-of-river, and storage facilities divert, obstruct or change the natural flow or bed of freshwater and saltwater resources.


Hydraulic Project Approval Process

19-WA-h.1 to 19-WA-h.2 – Will the Project Use, Divert, Obstruct, or Change the Natural Flow of any Water of the State?

In Washington, a developer may need to obtain a Hydraulic Project Approval (“HPA”) from the Washington Department of Fish and Wildlife (“WDFW”) for “any construction or performance of work that uses, diverts, obstructs, or changes the natural flow or bed of any fresh water or saltwater in the state…” W.R.C. §77.55.011(11); W.R.C. §77.55.021; W.A.C. §220-660-010. State waters include all marine waters and fresh waters of the state, except those watercourses that are entirely artificial, such as irrigation ditches, canals, and stormwater run-off devices. W.A.C. §220-660-030 (62),(131).

19-WA-h.3 – Does the Project Qualify for a Simplified Hydraulic Project Approval?

Certain categories of projects qualify for Simplified HPA, which means that the developer need only to fill out an Washington Department of Fish and Wildlife – Hydraulic Project Approval Simplified Application (“Simplified Application”) and submit plans to WDFW for approval. This process typically applies only to secondary hydropower project activities. Projects eligible for Simplified HPA include:

  • Road maintenance work;
  • Mineral prospecting;
  • Beaver dam modification;
  • Repositioning or removal of large wood;
  • Dock maintenance/repair;
  • Scientific instrument installation;
  • Trenchless conduit (utility) crossing; or
  • Fish screen maintenance or replacement.

Washington Department of Fish and Wildlife – Hydraulic Project Approval Simplified Application.

19-WA-h.4 – Simplified Hydraulic Project Approval Application

If the project qualifies for a Washington Department of Fish and Wildlife – Hydraulic Project Approval Simplified Application, then the developer may submit a Simplified Application to WDFW. If WDFW or the relevant state or local agency conducts a Washington State Environmental Policy Act (“SEPA”) review for the project, then any associated documentation must be included with the Simplified Application. However, if SEPA review has not been conducted for the project, then initiating SEPA review is not required to obtain a Simplified HPA. Washington – Wash. Admin. Code §§ 220-660 et seq., Hydraulic Code Rules.


19-WA-h.5 to 19-WA-h.6 – Review Application Materials for Completeness

WDFW reviews the application materials for administrative and technically completeness.

19-WA-h.7 to 19-WA-h.9 – Does WDFW Approve the Application?

If the developer includes all necessary information, then WDFW may approve the Simplified Application. Approved HPAs will be issued within 45 calendar days of receipt of a complete application. WDFW may grant the HPA permit for a period of up to five years. W.A.C. § 220-660-050(12)(b).

The developer may appeal the decision to deny an Application to WDFW.


19-WA-h.10 to 19-WA-h.11 – Has SEPA Review been Conducted?

For all HPAs, excluding Expedited and Emergency HPAs, a developer must first ensure that the relevant state or local agency has reviewed the proposed project pursuant to the Washington State Environmental Policy Act (SEPA). For more information regarding the Washington State Environmental Policy Act, see:

State Environmental Overview:
9-WA-a

19-WA-h.12 – Joint Aquatic Resource Permit Application (JARPA) and Associated Documents

Federal, state, and local agencies have developed a single application for a selection of water related approvals to streamline the permitting process in Washington. A developer can submit a Joint Aquatic Resources Permit Application (JARPA) for:

  • U.S. Army Corp of Engineers Section 10 and Section 404 Permits;
  • U.S. Coast Guard Private Aids to Navigation (PATON);
  • Washington State Department of Ecology 401 Water Quality Certification;
  • Washington State Department of Fish and Wildlife Hydraulic Project Approval;
  • Washington State Department of Natural Resources Aquatic Use Authorization; and
  • Local shoreline permits for Substantial Development, Conditional Use, Variance, Exemption, and Revision.

The JARPA requires the developer to submit the following information:

  • The project name;
  • The applicant/developer;
  • Authorized agents;
  • Property owner(s);
  • Project location;
  • Project description;
  • Wetlands impacts and mitigation techniques;
  • Waterbodies (other than wetlands) impacts and mitigation techniques;
  • Washington State Environmental Policy Act compliance; and
  • Other additional information as required.

Joint Aquatic Resources Permit Application (JARPA).

The state of Washington has developed instruction guides for completing and understanding the JARPA process (Washington Completing JARPA Instructions and Washington JARPA Technical Help) which includes a pre-submittal checklist for developers to make sure they have included all necessary information and attachments such as wetland delineations, mitigation plans, best management practices, etc.

The developer should submit copies of the JARPA to all relevant permitting agencies at the federal, state, and local level.

The developer is required to include a notice of compliance with the Washington State Environmental Policy Act with their JARPA Application. The JARPA Application packet should include:

  • General plans for the overall project;
  • Complete plans and specifications for the proposed construction or work;
  • Waterward of the mean higher high water line in salt water;
  • Waterward of the ordinary high water line in fresh water; and
  • Complete plans and specifications for the proper protection of fish life.

Washington – Wash. Admin. Code §§ 220-660 et seq., Hydraulic Code Rules.

Note: However, WDFW prefers that applicant (developer) use WDFW’s online permitting system (APPS) for HPAs.


19-WA-h.13 to 19-WA-h.14 – Review Application Materials for Completeness

WDFW will review the Application materials for administrative and technical completeness. WDFW may request additional information from the developer, if necessary.

19-WA-h.15 to 19-WA-h.16 – Is the Application Approved?

WDFW must deny an HPA when the project will result in direct or indirect harm to fish life, unless adequate mitigation can be assured by attaching conditions to the HPA or modifying the proposal. If WDFW denies the HPA, they must provide written explanation to the developer stating the reasons for denial. W.A.C. § 220-660-050(14).

The developer may appeal the decision to deny an Application to WDFW.

19-WA-h.17 – Hydraulic Project Approval

WDFW will grant the HPA for a period of up to five years. W.A.C. § 220-660-050(15).

19-WA-h.18 – Provide Proof of Substantial Progress

The developer is required to demonstrate substantial progress on construction of the portion of the project covered by the HPA within two years of the date of issuance of the permit. W.A.C. § 220-660-050(15)(a).



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