Final PEIS 14-049 Hydraulic Code Rules Revision - Statewide

The Washington Department of Fish and Wildlife (WDFW) issued a Draft Programmatic Environmental Impact Statement (Draft PEIS) on proposed changes to the Hydraulic Code Rule (chapter 220-110) Washington Administrative Code (WAC) in October 2013. WDFW received numerous public comments on the Draft PEIS during the public comment period that ended December 13, 2013. In addition, the 2014 Washington State Legislature passed amendments (SHB 2261) to Revised Code of Washington (RCW) 34.05.271 that clarify how WDFW is required to identify sources of information reviewed and relied upon in preparing to take a significant agency action, including changes to agency rules. In response to the public comments and to respond to amendments to RCW 34.05.271, WDFW prepared a Supplemental Draft Programmatic Environmental Impact Statement (PEIS) on the proposed Hydraulic Code Rule changes. Public comment on the Supplemental Draft PEIS began July 16, 2014, and ended September 15, 2014 after a 30-day extension was granted.

WDFW has responded to comments on the Supplemental Draft PEIS, and submits this Final PEIS incorporating those responses. Comments and responses on the Draft and Supplemental Draft PEIS documents can be found in Appendix A. Action on the proposed rule change will occur no sooner than seven days after this Final PEIS is released in October 2014.

WDFW protects fish life by using its authority to provide approvals for construction or work that might affect the flow or bed of waters of the state. Specifically, WDFW issues Hydraulic Project Approvals (HPAs) for 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. HPAs are issued and provisioned based on the Hydraulic Code Rules, which implement chapter 77.55 RCW (Construction Projects in State Waters). WDFW is proposing revisions to the Hydraulic Code Rules primarily to improve protections for fish life. The Hydraulic Code Rules, except those for mineral prospecting, were last updated in 1994 before Washington fish species were listed as threatened or endangered under the federal Endangered Species Act (ESA). There have also been many changes to the statute, fish science, and design technology in that time. Updates to the Hydraulic Code Rules are needed to improve the consistency of the rules with statutory changes that have occurred since the last update, and to incorporate more current fish science and design technology.

WDFW initially undertook revision of the Hydraulic Code Rules in 2006 as part of the process of preparing a Habitat Conservation Plan (HCP) pursuant to the ESA for the HPA Program. An HCP is a management strategy under ESA that can provide long-term certainty of ESA compliance (refer to Section 1.5). It can be used for a particular set of activities, such as administrative rules, while providing conservation of ESA-listed species. WDFW was developing an HCP to assure that agency permitting actions contributed to conservation and recovery of listed species and to provide federal assurances to HPA permit holders for activities under an HPA. Updating the Hydraulic Code Rules was a centerpiece of developing the HCP. WDFW discontinued work on the HCP in 2012 when stakeholder and tribal support waned. However, WDFW has continued to work on revisions to the Hydraulic Code Rules.

A stakeholder working group was convened in 2011 to discuss modifications to the Hydraulic Code Rules. Stakeholder groups who were represented in 2011 meetings are listed in Appendix C. WDFW maintained discussions with individual stakeholder organizations and groups of organizations as we continued to develop proposed Hydraulic Code Rules. The final staff-recommended proposed Hydraulic Code Rules are products of intensive discussions with stakeholders in 2011 and since.

WDFW intends to complete adoption of the rules in November 2014. This Final PEIS is being prepared as part of the rule making process. Update of the Hydraulic Code Rules includes a major re-organization and simplification of the rule language as well as changes to some HPA provisions. Because of this, the updated rules appear under a new rule section: chapter 220-660 WAC. If changes to Hydraulic Code Rules are adopted, the current rules in chapter 220-110 WAC will be superseded by the new rules in chapter 220-660 WAC. If no changes are adopted, chapter 220-110 as it exists today will remain in effect.

Comments on the Supplemental Draft PEIS and proposed rules were taken separately but concurrently. Those comments and WDFW responses are detailed in Appendix A.

The sections in this chapter include descriptions of:

• The purpose and need for the proposed action;
• Summary of comments on the Draft PEIS and Supplemental Draft PEIS;
• Statutory authority for the proposed action;
• The State Environmental Policy Act (SEPA) review process;
• Related regulations and policies;
• Public involvement; and
• A guide to reading this document.

A note about terms and definitions: Terms used in the Hydraulic Code Rules are defined in that rule (Section 220-660-030 WAC). Terms not specifically defined in WAC are used in their common usage (as defined in any common dictionary). For the this EIS, the term "statute" means laws created by the legislature and codified in the "Revised Code of Washington" or RCW. The term "rule" refers to implementing regulations created by agencies and codified in Washington Administrative Code or WAC. Use of the term "code" refers to the "Hydraulic Code" in chapter 77.55 RCW unless an alternative context is clear.

Rules are the tools used by state government to implement the laws codified in RCW. Creating new rules, or revising old ones, must be done using steps and considerations set forth in the Administrative Procedures Act (chapter 34.05 RCW). For WDFW, adopting Hydraulic Code Rules or rule revisions is considered to be an action subject to State Environmental Policy Act (SEPA) statutes (chapter 43.21C RCW) and rules (chapter 179-11 WAC), hence this EIS. For more information on laws and rules, refer to the Legislature's web page at: http://www.leg.wa.gov/LawsAndAgencyRules/Pages/default.aspx. For more information on SEPA, refer to Department of Ecology's web page at: http://www.ecy.wa.gov/programs/sea/sepa/e-review.html.