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Washington Supreme Court: WDFW Has Authority Over Projects Above Ordinary High Water Marks
December 14, 2018

By Armand Resto-Spotts

The Washington Supreme Court confirmed the jurisdictional scope of the Washington Department of Fish and Wildlife (WDFW) over hydraulic projects, as authorized under the Hydraulic Project Act (HPA).  So long as a statutorily defined hydraulic project “use[s], divert[s], obstruct[s], or change[s] the natural flow or bed of any of the [waters of the state],” then WDFW has permitting authority over the project, even if that project is above the ordinary high water mark.

Under the HPA, applicants proposing to undertake “hydraulic projects,” which include any construction or work that will “use, divert, obstruct, or change the natural flow or bed of any of the [waters of the state],” must obtain permits from WDFW before beginning work.  Whether a project meets this definition and will impact the waters of the state is known as the “effects test.”
 
Several counties in the state took issue with WDFW’s rules implementing the HPA, specifically that “upland projects,” or projects that are located above the ordinary high water mark, are still subject to WDFW’s permitting authority, as long as the projects meet the “effects test.” 
 
The State Supreme Court, in an opinion based purely on statutory interpretation, conclusively found that any project reasonably certain to “use, divert, obstruct, or change the natural flow or bed” of the waters is subject to the HPA, and thus, WDFW permitting authority.  The Court recited a number of examples of hydraulic “upland projects” that meet this “effects test,” such as stormwater discharge systems, which funnel stormwater into waters of the state, or removal of vegetation near a waterway, which “causes deposition of eroded sediments into the waterway’s bed and changes the water temperature by eliminating shade coverage.”  As one can imagine, there are dozens of examples of “upland projects” that necessarily “use, divert, obstruct, or change the natural flow or bed” of the waters of the state.
           
The Court’s decision is unsurprising, but informative.  It clarifies an ongoing point of dispute between applicants and the agency about permitting authority.  Each individual project will have specific facts and circumstances that may or may not qualify for the “effects test.”  Regardless, just because the project is “upland” of water, does not mean an applicant will be exempt from the HPA and WDFW’s permitting authority.  
 



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