Washington Hydraulic Project Approval (19-WA-h)
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.
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 underground water aquifers.
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 storm water 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. 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.
19-WA-h.4 to 19-WA-h.7 – 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 will submit a Simplified Application to WDFW. If WDFW or the relevant state 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. WAC 220-110-030(8).
If the developer includes all necessary information, then WDFW will approve the Simplified Application. Simplified HPAs will be issued within 15 calendar days of receipt of a completed application. WDFW will grant the HPA permit for a period of up to five years. WAC 220-110-030(13).
19-WA-h.8 to 19-WA-h.9 – Has SEPA Review been Conducted?
For all other HPAs, excluding Simplified HPAs, a developer must first ensure that the relevant state 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:
19-WA-h.10 – 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.
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. WAC 220-110-030(3). 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.
19-WA-h.11 to 19-WA-h.12 – Review Application Materials for Completeness
WDFW will review the JARPA Application materials for administrative and technical completeness. WDFW may request additional information from the developer, if necessary.
19-WA-h.13 to 19-WA-h.14 – 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. WAC 220-110-030(14).
The developer may appeal the decision to deny an Application to WDFW.
19-WA-h.15 – Hydraulic Project Approval
WDFW will grant the HPA for a period of up to five years. WAC 220-110-030(13).
19-WA-h.16 – 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. WAC 220-110-030(13).
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