High-water line “hydraulic projects” fall within the Dep’t of Fish & Wildlife’s permitting authority
Earlier this month, the Supreme Court of Washington released its opinion in Spokane County v. Department of Fish and Wildlife. Briefly, anyone seeking to complete a hydraulic project must get a preconstruction approval permit from the Department of Fish and Wildlife. A “hydraulic project” is defined as “the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state” in RCW 77.55.011(11). The Department has the ability to deny or condition a permit to protect fish life. RCW 77.55.021(1). In 2015, the Department promulgated new rules requiring a permit for bridge maintenance and construction, even if the work would occur above the high-water line. WAC 220-660-190. Spokane County, in coalition with other Washington counties, sought an exemption for work done entirely above the high-water line.
The counties first raised their concerns during the comment period of the 2015 rulemaking process. Then, the counties sought guidance from the attorney general. However, the attorney general issued an opinion concluding that the statute was unambiguous and provides the Department with permitting jurisdiction for “all work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state," regardless of whether the activity is above or below ordinary high-water lines. The counties challenged the interpretation in court and lost and thereafter appealed the decision directly to the Supreme Court. The Supreme Court affirmed.
Considering the statute’s plain language, the Court found the statutory definition of “hydraulic project” unambiguous and held that the definition applies to projects above the high-water line that are reasonably certain to “use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” The Court deferred to the Department's expertise in determining which projects meet that standard. The Court looked to the statute’s legislative history and found examples of projects that would be. Ultimately, the Court held that the plain language of RCW 77.55.021 grants permitting authority to the Department of Fish and Wildlife for upland projects that meet the effects test set forth in RCW 77.55.011(11). The Court also held that the effects test requires reasonable certainty, not absolute certainty.