New ‘civil enforcement’ proposed for violations of hydraulic permits

Concerns about the endangered southern resident killer whales seems to be spurring legislative support for new enforcement tools that could be used to protect shoreline habitat.

Bills in both the state House and Senate would allow stop-work orders to be issued by the Washington Department of Fish and Wildlife when shoreline construction is done without permits or exceeds permit conditions. If passed, the law would require that Fish and Wildlife officials first work with contractors and property owners to achieve “voluntary compliance.”

Working with property owners is the key, stressed Jeff Davis, deputy director of Fish and Wildlife in charge of habitat protection. Under current law, property owners who commit serious permit violations are charged with criminal misdemeanors. That’s neither good for the agency nor for the property owner, who may end up battling each other in court, said Davis, who once worked as a Fish and Wildlife habitat biologist in Kitsap County.

The criminal approach may work well with “egregious violations of the law,” Davis told the House Committee on Rural Development, Agriculture and Natural Resources, “but it’s not an appropriate tool for the vast majority of noncompliance we see out there. We would rather work with people so they are in compliance and there aren’t impacts to fish.”

Fish and Wildlife officials have been seeking this type of “civil authority” for years, but groups representing counties, businesses, farms and property-rights advocates have opposed granting the agency any further authority, and previous bills have been stripped down or otherwise killed in the Legislature.

This time, advocates have invoked concerns about orcas, carefully laying out a case that connects the protection of shorelines to tiny forage fish, which spawn in sand or on vegetation along the shoreline. Forage fish are eaten by salmon, which are essential food for the orcas.

Improving permitting and enforcement through the state’s Hydraulic Project Approval (HPA) system was a recommendation from the governor’s Southern Resident Killer Whale Task Force and became a governor-request bill in the Legislature. The proposed HPA procedures are reflected in House Bill 1579 and Senate Bill 5580.

Orcas are in serious danger of extinction, said Jay Manning, chairman of the Puget Sound Partnership’s Leadership Council, which oversees recovery of the Puget Sound ecosystem.

“Without good habitat, we cannot restore salmon,” Manning testified, “and without salmon recovery, orca recovery is highly unlikely. This bill does something really simple and really important to protect habitat. It makes the Department of Fish and Wildlife’s Hydraulic Project Approval program enforceable.”

The HPA system was first approved in 1941 to protect streams from damage, and it was later extended to marine shorelines. Unlike later habitat-protection laws, violations of the state’s Hydraulics Code have been treated as crimes, involving uniformed officers, prosecutors and judges.

I recall sitting in court in 1992 when a major landowner was accused of clearing trees from a wetland in Central Kitsap without a permit. He contended that the Department of Fish and Wildlife had no jurisdiction over his property, because the wetland was isolated and not connected to a salmon stream. State authorities contended otherwise.

The deputy prosecutor laid out the facts of the case before a judge, spelling out the nature of the stream running through the property, and witnesses described damage to the wetland and the species living there.

When the prosecution rested, I expected to hear arguments from the defense attorney. Instead, the attorney moved for dismissal, and the judge threw the case out of court. The reason was simple: The prosecutor never established that the defendant was the person who caused the damage, even though his identity was never in question. None of the witnesses had been asked to point to the defendant sitting in the courtroom, as required by court procedures.

Later, the 80-acre property was acquired by Kitsap County, which undertook extensive wetland- and stream-restoration projects.

I’m aware of other criminal cases involving allegedly illegal shoreline development. In the best cases, the property owner agrees to repair any damage in return for a deferred prosecution, in which event the charges are dropped after restoration is complete. Sometimes, additional fines are levied. But it often becomes a contentious battle involving lawyers. It seems that more could be accomplished through cooperation — which is the goal of the legislation.

Tom Davis of the Washington Farm Bureau advised legislators to be cautious when expanding the authority of Fish and Wildlife.

“The stop-work order could be especially harmful to farmers who have a very short time to do work on their land,” he said, adding that the bill might be acceptable with some changes, including limits for when stop-work orders could be issued.

Other opponents include the Washington Association of Counties, which has had a contentious relationship with Fish and Wildlife over jurisdiction. Counties have generally opposed state requirements to obtain HPAs for work on roads and bridges that may be some distance from the water. In December, the Washington State Supreme Court ruled that HPAs can be required for any project that can affect the waters.

HB 1579 allows for property owners to file a “pre-application” when there is a question about whether Fish and Wildlife will require a permit. The bill eliminates a requirement that the agency approve all bulkheads or shoreline armoring, with or without mitigation measures. That change would make the law more consistent with the Shoreline Management Act, which requires shoreline property owners to prove a need for a bulkhead.

Pacific sand lance at rest on sand.
Photo: Collin Smith, USGS

The concern about bulkheads is that they can cover up spawning habitat for surf smelt and sand lance, eliminate sandy substrate needed for eelgrass, and increase predation of small fish, including baby salmon, swimming along the shoreline.

The bill would raise fines for violations from $100 per day to $10,000 per violation. It includes provisions for appealing any enforcement action, including the stop-work order.

Another provision of the bill adds a licensing requirement for saltwater smelt fishing, which is currently exempt in areas where fishing is allowed.

Leonard Forsman, chairman of the Suquamish Tribe, spoke in favor of the bill, saying orcas have been “sacred” to generations of Suquamish people who helped preserve the landscape they inherited.

“The orca are going to need us to do a lot of little things and a lot of bold things for us to preserve their habitat,” Forsman said. “We need to push the balance away from so much development back to what is needed for the southern resident killer whales.”

An amendment that would have limited the changes to counties in the Puget Sound region was rejected by Democrats on the House Rural Development, Agriculture and Natural Resources Committee. Opponents argued that the civil procedure would be more effective enforcement for development on salmon streams in all portions of the state.

HB 1579 was passed out of the committee on an 8-6 vote, with all Democrats voting in favor and all Republicans present voting against the measure. A second hearing on the bill was held yesterday in the House Appropriations Committee. The Senate bill received testimony Feb. 5 but no action has been taken.

With regard to the need to protect shoreline habitat, I would like to refer you to a series of articles I helped produce for the Encyclopedia of Puget Sound:

One thought on “New ‘civil enforcement’ proposed for violations of hydraulic permits

  1. Thanks for a very thorough article about the arcane world of HPAs and their enforcement, or lack of enforcement as the case may be. It is also worth noting that Sound Action is an NGO that has specifically worked to monitor and if necessary challenge HPAs over the last five years. We support these bills as necessary tightening of the ability of WDFW to actually enforce the law and do a better job of going after scofflaws. Currently there is little enforcement that isn’t forced on WDFW. These laws if passed will do a great deal to moving us forward in protecting what’s left of the habitat along the shore.

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