WDFW Seeks Far-reaching Hydraulic Rule Code Changes it is not Prepared to Administer

Impact Statement on proposed changes to the Hydraulic Code Rules -Chapter 220-110 Washington Administrative Code (WAC). The Washington Department of Fish and Wildlife has prepared a Draft Programmatic Environmental Impact Statement that will be reviewed here.  For  purposes of this article, the above mentioned document will be called DPEIS.  This is needed because throughout the document referred to (http://wdfw.wa.gov/licensing/sepa/2013/13072peis.pdf) the department seems to think that other acronyms are interchangeable with DPEIS. The DPEIS in itself is problematic.  This document is generalized, does not include supporting documentation, and is redundant, rambling, and was not prepared with the required cost – benefit analysis. It does not meet the requirements of SEPA or NEPA and does not address the real impacts such as increased threats to human life, property, and livestock.  There is no financial analysis addressing the impacts to business, farmers, foresters, property owners, or impacts to citizens’ constitutional rights. This document fails to address the impacts to municipalities including increased costs and impacts to utility districts.  Therefore, the DPEIS is incomplete. The science listed in the references is from internal publications, not independently peer reviewed third party scientific publications, and the so called science used is not multidisciplinary.  Much of what is used as science does not meet BAS requirements and does not meet the requirements of HB 1112. The WDFW is attempting to broaden its mission from issuing HPA permits based exclusively on impacts to fish, to include in its mission shoreline and near shore habitats and mitigation requirements that are already addressed by an excess of federal, state, and municipal codes.  Furthermore, WDFW is attempting a change to the use a one size fits all method of applying so called science from a site specific HPA analysis. Cumulative effects are the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertake such other actions. Cumulative impacts can result from individually minor, but collectively significant, actions taking place over a period of time.  There is no summary of changes from the current rules to the proposed rules, making it difficult to determine if the proposed changes will have either a positive or negative impact on fish species, or to determine if the proposed rule changes will have any impact regarding cumulative effects. In the course of attempting to broaden its mission, the WDFW is including in its proposed rules agencies such as The State Department of Archaeology and Historic Preservation, and activities that are already covered under other codes, such as the GMA and the SMA.  The WDFW does not have the authority to include codes that do not pertain directly to the WDFW. Stakeholder and public involvement are inadequate in a rule making process that proposes to be so broad and sweeping a rule change as to have significant impact on the public.  This is seen in that the public comment period only received 31 comments to the proposed rule changes.  The inadequate notice and involvement of the public will result in hardships and changes that will come as a surprise to the public and then be all the more costly.  The WDFWs choice of stakeholders obviously dismissed and failed to include a broad enough group of individuals as to allow for significant involvement by the public.  Where were the major property rights groups included in the stakeholders group?  The WDFW now should be compelled to at least publically list the stakeholders to insure the public that enough public interests were involved in the process.  Some questions need to be answered:  How many public meetings were held?  Was there adequate notice of these meetings to the public?  Were all municipalities, small and large aware of the proposed rule changes and the possible impacts to them of the rule changes?  Were formal comments accepted and recorded at each step of the involvement process? The stakeholder group was consulted on the Hydraulic Code Rules that WDFW proposes for adoption including new fish science and design technology.  The new fish science and design technology is not something that should be addressed by the stakeholder group alone, but also to the public.  It should also be vetted, since it is labeled as science.  How did the WDFW do the peer review, and what specific science was used to develop the “new fish science”?  What specific disciplines of science were used, and which scientists were consulted?  The multidisciplinary approach to best available science was not used, as its white papers show the science was internally produced documents that were reviewed, and they were reviewed internally.  The WDFW presents no record of what is defined as best available science, and presents no record of that definition having been followed.  If the WDFW wishes to broaden its scope of influence through rule changes, then it needs to also present evidence that that scope is needed, and that it has complied with Best Management Practices in its science, and that the proposed rules and science they use are compatible with the scope they seek.  Has the WDFW made sure that its actions will comport with what is required of them under the Clean Water Act, GMA, SMA, and Ecology’s Storm Water Management?  How has the WDFW with this document of Proposed Rule Changes shown that it has complied with the law in HB 1112? The scope of influence the WDFW seeks in this DPEIS includes differences from the present rules to the Preferred Rules that would impact the lion’s share of the following activities: Streambank protection and lake shoreline stabilization; Residential docks, watercraft lifts, and buoys in fresh water areas;  Boat ramps and launches in freshwater areas;  Dredging in freshwater areas;  Marinas and terminals in freshwater areas;  Sand and gravel removal;  Water crossing structures;  Fish passage improvement structures;  Channel change/ realignment;  Large woody material placement, repositioning, and removal in freshwater areas;  Beaver dam management;  Pond construction;  Water diversions and intakes;  Outfall structures in freshwater areas;  Utility crossings in freshwater areas; Felling and yarding of timber;  Aquatic plant removal and control;  Mineral prospecting;  Intertidal forage fish spawning habitat survey;  Seagrass and macroalgae habitat surveys;  Bulkheads and other bank protection in saltwater;  Residential piers, ramps, floats, watercraft lifts, and buoys in saltwater areas; Boat ramps and launches in saltwater areas;  Marinas and terminals in saltwater areas;  Dredging in saltwater areas;  Artificial aquatic habitat structures; Outfall, tide, and flood gate structures in saltwater areas;  Utility lines in saltwater areas;  Boring in saltwater areas. This extensive list of activities are claimed to have the potential to effect several different aspects of the environment.  Thus WDFW is proposing rule changes that are significant, much requiring mitigation, on the same activities in many differing ways, and basing the required rule changes on potential effects, ignoring the fact that no nexus between the activity and peer reviewed science exists. This DPEIS evaluates two alternatives for changes to the Hydraulic Code Rules—the No Action Alternative, which consists of the Current Rule.  And the Preferred Alternative, comprising the Proposed Rule Changes.  It is time for the WFWD to choose the stated alternative of the No Action Alternative to change its Hydraulic Code Rules until and unless it can prove its Preferred Alternative is one it is capable to implement.  The WDFW needs to show it is ready to chew what it has attempted to bite off.  This DPIES document dismayingly demonstrates they are not yet ready for the environmental responsibility they seek. Here again is the internet address to obtain this document and review it.  http://wdfw.wa.gov/licensing/sepa/2013/13072peis.pdf  Although it is unnecessarily large at 132 pages, it is broken into sections, so the task of determining how an individual or business will be effected by this proposed rule change is not as daunting as would first seem.  It is needed though to understand and comment on the changes.  The comment period has been extended until December 15, 2013. One should get comments submitted before that time. Here is the information needed for submitting comments: Contact: Randi Thurston Phone: (360) 902-2602 email randall.thurston@dfw.wa.gov  

November 10, 2013