Washington court: Fish and Wildlife can regulate land to protect fish – Capital Press


An extremely important ruling has come down at the Washington State Supreme Court on Thursday. The  unanimous ruling affirmed the right of the Washington State Department of Fish and Wildlife to regulate construction on dry land above the normal tide lines in order to protect fish. This enormously expands the scope of the Hydraulic Permit Code and will likely have great consequences for Governor Inslee’s hand in making policy decisions for protecting additional salmon habitat for Orca recovery. I’m sure that the plaintiffs might wish they had never brought this before the Supreme Court. But there’s also caution for environmental organizations that may celebrate the ruling.

From the case itself. It offers a good basic understanding of what these Hydraulic Permit Applications are and when they are required.

This case asks us to determine the geographic scope of permitting authority delegated to the State of Washington Department of Fish and Wildlife  (Department) over hydraulic projects. A “hydraulic project” is defined as “the  construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state.” RC_W 77.55.011(11).
Entities seeking to undertake hydraulic projects must apply for and obtain permits from the  Department before commencing work. RCW 77.55.021. In this case, a coalition of  Washington State counties (Counties) challenge the Department’s statutory authority to regulate the construction or performance of work that will occur exclusively above the ordinary high-water line.
The Hydraulic Code requires anyone planning to undertake a hydraulic project to obtain a preconstruction approval permit from the Department to ensure “the adequacy of the means proposed for the protection of fish life.” RCW 77.55.021(1).
The Department can deny or condition a permit only for the purpose of protecting fish life. RCW 77.55.021(7)(a). The Department’s regulatory authority encompasses hydraulic projects, which are defined based on their effects on waters of the state rather than their location relative to those waters. See RCW 77.55.011(11).
An HPA [hydraulic project approval] is required for all construction or repair/replacement of any structure that crosses a stream, river, or other water body regardless of the location of the proposed work relative to the [ ordinary high-water level] of state waters.
An HPA is also required for bridge painting and other maintenance where there is potential for paint, sandblasting material, sediments, or bridge parts to fall into the water.
ISSUE
Did the legislature intend to limit the Department’s permitting and regulatory authority to cover only projects that take place at least partially at or below the ordinary high-water line?
CONCLUSION
We hold that under the plain language of RCW 77.55.021, the Department’s jurisdictional grant of permitting authority includes upland projects that meet the effects test set forth in RCW 77.55.011(11). We further hold that the effects test requires reasonable certainty, not absolute certainty. Finally, we defer to the expertise of the Department to determine which upland activities meet the effects test. Accordingly, we affirm the trial court’s order.
The findings are that WDFW has authority to require HPAs for upland projects that fit the scope of the legal codes. That the requirements can be done by reasonable certainty and not a strict legal finding of certainty,  which gives much greater leeway for WDFW to issue requirements for an HPA. Lastly, the Supreme Court defers to the expertise of the Department  to determine which activities meet the requirements.
This last finding may be a double edge sword. What if the Department is wrong in a finding, siding with a developer who has huge resources and proposes enormous or highly unusual trade offs for the idea of “no net loss”?  What if they don’t decide to force an HPA (or agree with a developer intent on massive environmental change) and an environmental organization challenges that? The ruling here seems to give much greater leeway to excesses of the Department in both directions. That may not be as positive a win for environmental organizations as it appears. It requires close oversight to make sure that the law is narrowly applied to appropriate projects, while also ensuring that bureaucrats are not simply rubber stamping inappropriate and possibly habitat destructive projects.
Here’s a link to the ruling:

Read the Capital Press story here:

https://www.capitalpress.com/ag_sectors/water/washington-court-fish-and-wildlife-can-regulate-land-to-protect/article_ea1e014c-f97a-11e8-859d-7f550b7b3843.html

 

 

 

One Response

  1. The truth of the matter is that the state of our politics have regulators playing defense and managing risk of litigation. This lawsuit brought by the counties is a perfect example. WDFW spends a lot of time fighting with local governments who should be the example rather than the exception. It’s a shame that when the public perceives agencies doing a bad job they seek to punish them and take away resources rather than providing the support needed to address the problems. If folks really want these agencies to start playing offense then support them at the legislature!

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