Washington’s Hydraulic Project Approval Program Hydraulic Code Implementation Citizen Advisory Group Agenda Thursday, March 14, 2019 10:00 am - 2:30 pm Olympia Center, Room 100 222 Columbia St. NW Olympia WA, 98501 Protection Division Manager: Randi Thurston Google Maps: https://goo.gl/maps/2AXtmtbuMdt 1. 10:00 am Welcome and Introductions Facilitator: Neil Aaland Staff: Dan Doty, Teresa Scott, and Pat Chapman Neil Old Business • 2. 3. 10:15 am 11:30 am Review agenda HCICAG Roles, responsibilities and moving forward • Welcome from Margen Carlson • Why are people here? • Purpose of the CAG (DFW) • Focus Areas for 2019 (DFW, all) HPA Program/Implementation Overview • Margen Carlson, Randi Thurston, all Pat Chapman, others Information on numbers of permits, timeliness, Appeals, enforcement 4. 12:00 noon Lunch (Lunch will be provided) 5. 12:30 pm New Application System Kim Marshall 6. 1:30 pm Compliance information Teresa Scott • Discuss numbers requested by CAG at last meeting 7. 2:00 pm Roundtable • Items of interest brought by CAG members 8. 2:30pm Adjourn Notes: Meeting materials will be posted on WDFW’s Hydraulic Code Implementation Citizen Advisory Group website: http://wdfw.wa.gov/about/advisory/hcicag/ Updates for the Hydraulic Code Implementation Citizen Advisory Group March 2019 Suction Dredging Rulemaking WDFW filed the CR-102 on February 20th. Written comments can be submitted on or before 5:00 pm on April 8, 2019. The Fish and Wildlife Commission will hear public testimony at their April 5-6 meeting. See email dated February 25th. To learn more out the rulemaking, go to our webpage. Legislation – Hydraulic Code Related Only two bills that affect the HPA Program are still alive. 2SHB 1579 which Implements the recommendations of the southern resident killer whale (SRKW) task force related to increasing chinook abundance passed out of the House of Representatives and has moved to the Senate. This is the only live Southern Resident Killer Whale bill that affects the HPA Program. Another bill, ESSB 5322 that originally only changed the Department of Ecology’s statutory authority, was amended to include an amendment to the HPA authority. The bill, if passed, will require proof of compliance with the Federal Clean Water Act as part of a complete HPA application for mineral prospecting or mining using a motorized or gravity siphon equipment. This bill has passed out of the Senate and has moved to the House of Representatives. See emails dated February 8th and February 25th for information about the status of bills that affect other programs in WDFW. Current Litigation Cascadia Wildlands v. WDFW – On September 14, 2018, Thurston County Superior Court ruled that WDFW has the discretion to allow methods of prospecting and mining, including suction dredge mining, to proceed under the Gold and Fish Pamphlet and that WDFW substantially complied with the APA rulemaking requirements in enacting the mining rule. The petitioner has appealed the Superior Court ruling to the Court of Appeals. Protect Zangle Cove v. WDFW – On December 11, 2018, Thurston County Superior Court issued a written order, based on the plain and unambiguous language of RCW 77.115.010(2), dismissing Petitioners’ claims and rendering any other pending motions (PNA’s motion to dismiss itself from the pleadings) as moot. The Court concluded that WDFW does not have the authority to regulate commercial aquaculture. The petitioner has appealed the Superior Court ruling to the Court of Appeals. Sound Action v. WDFW and Neiders – On August 24, 2018, the Pollution Control Hearing Board affirmed the Hydraulic Project Approval, issued to Karl Neiders by WDFW. The Board concluded that Sound Action failed to prove that the dock project will have impacts above the existing condition. Sound Action has appealed the Pollution Control Hearings Board Decision to King County Superior Court. Shoreline Armoring Implementation Strategy Update Grant opportunity: The Washington Department of Fish and Wildlife’s Estuary and Salmon Restoration Program has released its 2019 RFP for Local Shore Friendly Programs. Read this blog post to learn about how it came about. 1 FY18 National Estuary Program Draft Funding Recommendation - The Strategic Initiative Leads have released their draft funding recommendations for the FY18 National Estuary Program Geographic Funds. The Habitat Strategic Initiative Advisory Team (SIAT) recommended funding a suite of shoreline armoring-related Near Term Actions that address priorities identified in the Shoreline Armoring Implementation Strategy. Puget Sound Federal Task Force Shoreline Workgroup Funded - The Near Term Action (NTA) submitted by Dan Doty, WDFW, on behalf the Puget Sound Federal Task Force Shoreline Workgroup was selected for FY2018 Puget Sound National Estuary Program funding. This NTA implements part of the workgroup’s final recommendations that are intended to remove federal permitting barriers for soft shore alternatives. The NTA will help to fund WDFW and Ecology to participate in a federal/state/local Multi-Agency Review Team to expedite permitting of appropriate soft shore approaches on the marine shoreline. New Products Funded by the Marine and Nearshore Grant Program • • • • Benefit Cost Analysis of Shore Friendly Practices in Island County Island County Shore Friendly Video Puget Sound Sand Lance Habitat Characterization and Mapping Incentives to encourage soft-shore protection Other News HPA “Standard Operating Procedures” (Quick Start Guidance for Biologists) – Updates A panel of habitat biologists are currently reviewing and updating the six “Standard Operating Procedures”. These procedures were developed to guide and assist habitat biologists when processing HPA applications. The following procedures are being revised and reformatted to serve as quick start guidance for biologists: • • • • • • Stream Crossings Marine Overwater Structures Marine Bank Protection Freshwater Bank Protection Freshwater Overwater Structure Suction Dredging Additional guidance will be developed for other common project types once revisions for these have been completed. Project Review Form Guidance – The Compensatory Mitigation Review Panel finished updating the guidance for completing the Project Review Form. The document received some basic format updates to make the guidance more readable, but three major updates were made: • • A Project Review Form should be completed for all HPAs, including emergency HPAs. Language was modified to clarify which species to record. 2 • Compensatory mitigation that is offered by the applicant, with or without assistance from the HB, should be included on the form as required mitigation to properly track compensatory mitigation requirements. Public affairs will replace the old version on the Advisory Group’s website with the new version. Funding Received to Support Climate-Resilient Culvert Design - WDFW and UW Climate Impacts Group received a grant from the NW Climate Adaptation Science Center to further work on climate adapted culverts. This grant will enable WDFW and UW Scientists to develop an interactive website using the most current science. It will also allow scientists to explore different ways to present the information to engineers, landscape architects, restoration ecologists, and others involved in the design of culverts and stream restoration projects in Washington State. 3 Summary of HPAs Issued in 2018 Pat Chapman Regulatory Services Coordinator 2018 HPAs  2,263 HPAs Issued   2,104 Original HPAs 159 Major Modifications  253 Minor Modifications  4 Denials Issued  Culvert installation (minor mod.)  Mineral prospecting  47 HPAs issued to applicants w/o email addresses  156 applications withdrawn prior to HPA issuance  63 applications closed due to inactivity Expedited I Standard I Not Designated - North Central \"?aaund i Eastern 1. South Central Radon 3 40 Average Process Days for Standard HPAs By Region 34 30 20 10 21 20 21 21 22 3 4 5 6 9 11 0 1 2 Statewide Average = 21 Days Average Process Days for Expedited HPAs By Region 10 8 8 6 4 4 3 2 0 5 1 1 2 2 3 4 Statewide Average = 4 Days 5 6 Accepted Date for Standard & Expedited HPAs 250 200 150 100 50 0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Accepted Date for Emergency HPAs 35 30 25 20 15 10 5 0 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Project Types Overwater Structure Water Crossing Structure Dock Maintenance/Repair Bank Protection Other Shoreline Armoring - Marine Dredging Habitat Mineral Prospecting Road Maintenance Work Buoy Beaver Dam Modification Outfall structure Repositioning or Removal of Large Wood Utility Crossing Garbage and Debris Removal Diversion Structure Boat Access Channel Change/Realignment Fish Screen Maintenance or Replacement Scientific Instruments Fish Trap or Diversion Weir Barge Landing Aquatic Plant Control Water Surface Control Trenchless Conduit (Utility) Crossing Foot Access - beach stairs, cable car, etc Fishways Gravel Extraction 0 50 100 150 200 250 300 350 400 Grade Hating: Prompt and Tun-elmr WDFW staff: Fear Eelevv Average Average [in Abeve Average Excellent Cnurteeus and helpful WDFW staff: Pear Eelevv Average Average Aheve Average (-3: Excellent Permit cc-nditic-ns understandable andr'cr clearly explained: Fear (3: Eelew Average (3: Average (3: Abcve Average Excellent Overall service rating: Fear Eelevv Average Average Abeve Average (-3: Excellent enuld WDFW improve? Talre care at and hang cnte gced emplevees- WDFW hielngist whu assisted yen: l:l weuld like to submit my centact infennatien as part at this survey. Customer Survey Results Region 1 2 3 4 5 6 9 Grand Total Prompt and Timely 4.8 4.8 4.2 4.8 4.8 4.9 4.0 4.8 Courteous and Conditions Overall Service Helpful Understandable 4.9 4.5 4.8 4.9 4.8 4.8 4.7 4.4 4.3 4.8 4.8 4.8 4.8 4.6 4.8 4.9 4.8 4.9 4.5 4.5 4.5 4.9 4.8 4.8 399 Survey Results Returned/2,263 HPAs Issued = 17.6% Return Appeals Status (# of appeals) Whose HPA? Project Type (# of appeals) Resolution Appeal closed because permittee modified HPA (2) Third Party Third Party Third Party Third Party Own Minor clarifications/updates; HPA otherwise upheld (5) * HPA revoked for multiple reasons Marine bank protection (1) Accepted (12) Rejected or No Action (2) Marine overwater structure (8) Marine overwater structure (2) Minor clarifications/updates; HPA otherwise upheld Appeal closed because permittee modified HPA Minor clarifications/updates; HPA otherwise upheld * Freshwater overwater structure (1) Minor clarifications/updates; HPA otherwise upheld Freshwater bank protection (1) Parties resolved issues before appeal could proceed Log jam removal (1) Appeal rejected because it was filed late * Three of these appeals filed by same appellant to appeal modified HPA for the same project Statewide HPA-Related Enforcement Activity June 2016 - November 2018 Hydraulic Code Implementation Citizen Advisory Group version March 14, 2019 Following is data on Fish and Wildlife Enforcement Officer Activity relating to Hydraulic Project Approvals for the period from June 2016 through November 2018. Table A provides data on the overall number of contacts made and warnings given by Fish and Wildlife Enforcement Officers (FWO) on HPA permitted and HPA nonpermitted project issues. HPA-related contacts totaled 2,097 by FWO in Washington during these 30 months, with an average of 55 nonpermitted HPA contacts and 15 permitted HPA contacts per month during this period. Officers open follow-up investigations, called “incidents,” when a contact (or verbal warning) given to a person about a particular activity does not resolve an observed problem. Of the 2,097 contacts made on HPA-related issues during this period, only 366 resulted in some form of incident. Table A WDFW Enforcement Officer Contacts from CODY and Resulting Incidents June 2016 through November 2018 Period and Type 6/2016-12/2016 HPA NONPERMITTED HPA PERMITTED 2017 HPA NONPERMITTED HPA PERMITTED 1/2018-11/2018 HPA NONPERMITTED HPA PERMITTED Grand Total (30 months) Total HPA Nonpermitted Total HPA permitted Sum of Contacts 446 340 106 909 714 195 742 596 146 2,097 1650 447 Sum of Verbal Warnings 36 30 6 63 50 13 47 38 9 146 118 28 Average Contacts per month 64 49 15 76 60 16 67 54 13 70 55 15 Incidents Resulting from Contacts 87 75 12 140 127 13 139 131 8 366 333 33 Table B shows more detail for referrals during the 6/2016 through 11/2018 period. Of 366 separate incidents, 34 of those resulted in referrals, of which 18 incidents involved referrals to county prosecutors. Most incidents involved a single referral action or “violation,” however some incidents involved multiple violations. Of 34 incidents involving referrals, 18 had violations referred to county prosecuting attorneys. Statewide HPA-Related Enforcement Activity June 2016 through November 2018 Page 1 Table B Number of Referrals by Year and HPA Type - 6/2016 through 11/2018 Period and Type 6/2016-12/2016 HPA NONPERMITTED HPA PERMITTED 2017 HPA NONPERMITTED HPA PERMITTED 1/2018-11/2018 HPA NONPERMITTED HPA PERMITTED Grand Total (30 months) Total HPA Nonpermitted Total HPA permitted Number of Incidents 87 75 12 140 127 13 139 131 8 366 333 33 Incidents Involving Referrals to Prosecutors 5 5 0 8 7 1 5 4 1 18 16 2 Incidents Involving Referrals 6 6 0 18 16 2 10 9 1 34 31 3 Violations Referred to Other Agencies 1 1 0 10 9 1 5 5 0 16 15 1 Table C provides a breakdown by county of HPA-related contacts by FWO. Table C FWO Contacts by County and HPA Type - 6/2016 through 11/2018 June-December 2016 County Nonpermitted Permitted Asotin Benton Jan.-December 2017 Nonpermitted Permitted Jan.-November 2018 Nonpermitted Permitted Grand Total 6 14 28 8 1 Chelan 1 5 33 33 26 17 114 Clallam 3 6 16 11 36 Clark 6 43 2 12 63 6 1 9 16 8 3 19 36 2 2 3 21 2 2 1 12 5 67 Columbia Cowlitz 6 Douglas Ferry 5 7 4 2 Franklin Garfield Grant 6 5 Grays Harbor 11 18 Island 33 13 Jefferson King 15 Kitsap 5 Kittitas 8 5 55 13 7 9 16 10 24 109 12 4 73 9 Statewide HPA-Related Enforcement Activity June 2016 through November 2018 8 10 35 80 22 196 Page 2 June-December 2016 County Nonpermitted Permitted Jan.-December 2017 Jan.-November 2018 Nonpermitted Permitted Nonpermitted Klickitat 6 1 1 7 Lewis 17 37 4 43 Lincoln 31 Okanogan 15 15 Pacific 5 Pend Oreille Pierce 40 106 5 3 117 41 13 1 85 6 16 4 18 49 7 4 14 19 27 18 89 67 7 34 5 40 5 158 4 11 1 121 7 20 13 Skamania 50 2 10 Snohomish 52 Spokane 20 Stevens 4 Thurston 9 “Wa” 3 1 2 30 2 78 25 16 8 7 7 67 7 46 1 37 2 102 3 1 17 Whitman 2 Grand Total 340 143 24 15 (no county) 23 40 Walla Walla 15 13 12 7 Yakima 35 38 Wahkiakum Whatcom 5 31 San Juan 12 Grand Total 15 5 Mason Skagit Permitted 7 6 7 14 5 1 21 11 1 36 9 3 15 28 12 8 73 2 106 714 195 596 146 2,097 For Further Information For questions and further information contact: Teresa Scott Washington Department of Fish and Wildlife Habitat Program, Protection Division 360-902-2713 or teresa.scott@dfw.wa.gov . Statewide HPA-Related Enforcement Activity June 2016 through November 2018 Page 3