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(continued) quipment used are allowed to enter or leach into the watercourse. Equipment shall be well-maintained and where practicable, food-grade oil in the hydraulic systems should be used.
(c) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.
(d) Existing fish habitat components such as logs, stumps, and large boulders may be relocated within the watercourse if necessary to operate the equipment. These habitat components shall not be removed from the watercourse.
(e) Dredging shall be conducted at all times with dredge types and methods that cause the least adverse impact to fish life.
(f) Every effort shall be made to avoid the spread of plant fragments through equipment contamination. Persons or firms using any equipment to remove or control aquatic plants shall thoroughly remove and properly dispose of all viable residual plants and viable plant parts from the equipment prior to the equipment's use in a body of water.
(g) Work shall be conducted to minimize the release of sediment and sediment-laden water from the project site.
(h) Upon completion of the dredging, the bed shall not contain pits, potholes, or large depressions to avoid stranding of fish.
(i) Alteration or disturbance of the bank and bank vegetation shall be limited to that necessary to conduct the project. All disturbed areas shall be protected from erosion, within seven calendar days of completion of the project, using vegetation or other means. The banks shall be revegetated within one year with native or other approved woody species. Vegetative cuttings shall be planted at a maximum interval of three feet (on center), and maintained as necessary for three years to ensure eighty percent survival. Where proposed, planting densities and maintenance requirements for rooted stock will be determined on a site-specific basis. After prior authorization by the department, the requirement to plant woody vegetation may be waived for areas where the potential for natural revegetation is adequate, or where other engineering or safety factors preclude them.
(2) Diver-operated dredging only. The use of diver-operated dredging is useful to remove an aquatic noxious weed early infestation, and to assist in long-term maintenance following control or removal via other methods.
(a) Removal of plants and plant fragments from the watercourse shall be as complete as possible when using diver-operated dredging to remove or control aquatic noxious weeds. Plants and plant fragments shall be removed from the dredge slurry prior to its return to the watercourse. Dredged bed materials, including detached plants and plant fragments, shall be disposed of at an upland disposal site so as not to reenter state waters.
(b) An hydraulic dredge shall only be operated with the intake at or below the surface of the material being removed. The intake shall only be raised a maximum of three feet above the bed for brief periods of purging or flushing the intake system.
(c) If the intent of the project is to remove or control aquatic beneficial plants, prior authorization from the department shall be required.
(3) Dredging other than diver-operated dredging. Except for diver-operated dredging, an individual HPA shall be required for all dredging for aquatic plant control or removal projects.
(a) Dragline and clamshell dredges shall not be used to remove an aquatic noxious weed early infestation.
(b) Removal of plants and plant fragments from the watercourse shall be as complete as possible when using dredging to remove or control aquatic noxious weeds. Dredged bed materials, including detached plants and plant fragments, shall be disposed of at an upland disposal site so as not to reenter state waters.
(c) Dredging shall not be conducted in fish spawning areas unless approved by the department.
(d) An hydraulic dredge shall only be operated with the intake at or below the surface of the material being removed. The intake shall only be raised a maximum of three feet above the bed for brief periods of purging or flushing the intake system.
(e) If a dragline or clamshell is used, it shall be operated to minimize turbidity. During excavation, each pass with the clamshell or dragline bucket shall be complete. Dredged material shall not be stockpiled waterward of the ordinary high water line.
[Statutory Authority: RCW 75.08.080. 97-13-001 (Order 97-84), § 220-110-337, filed 6/4/97, effective 7/5/97.]
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220-110-338
Water level manipulation.
An individual HPA shall be required for water level manipulation. The use of water level manipulations (drawdowns) to remove or control aquatic noxious weeds or aquatic beneficial plants by exposing plants and root systems to extreme temperature and moisture conditions may be appropriate under specific circumstances. Accurate plant identification is important to ensuring any degree of success. Water level manipulation projects shall incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat. The following technical provisions shall apply to water level manipulation projects for both aquatic noxious weed or aquatic beneficial plant control or removal except where otherwise indicated:
(1) If at any time as a result of project activities or water quality problems, fish life are observed in distress or a fish kill occurs, operations shall cease and both the department and the department of ecology shall be notified of the problem immediately. The project shall not resume until further approval is given by the department. Additional measures to mitigate impacts may be required.
(2) Water level manipulation shall be conducted to cause the least adverse impact to fish life.
(3) Water level manipulation shall occur gradually and in a controlled manner to prevent a sudden release of impounded water or sediments which may result in downstream bed and bank degradation, sedimentation, or flooding. Water levels shall be drawndown and brought back up at rates predetermined in consultation with and approved by the department. Instream flow requirements shall be maintained as water levels are brought back up.
(4) Disturbed bank areas shall be protected from erosion. Erosion control methods may include, but are not limited to, filter fabric and immediate mulching of exposed areas. Riprap, or other bank hardening/armoring method, shall not be allowed.
[Statutory Authority: RCW 75.08.080. 97-13-001 (Order 97-84), § 220-110-338, filed 6/4/97, effective 7/5/97.]
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220-110-340
Informal appeal of adverse administrative decisions.
It is recommended that an aggrieved party contact the local habitat biologist responsible for the hydraulic permit decision of concern prior to initiating an informal or formal appeal. Discussion of concerns with the habitat biologist often results in resolution of the problem without the need for an informal or formal appeal. The habitat biologist may request review of your concerns by his or her supervisor.
All parties are encouraged to take advantage of this informal appeal process prior to initiating a formal appeal. However, this informal appeal process is not mandatory, and a person may proceed directly to a formal appeal.
(1) The following procedures shall govern informal appeals of department actions taken pursuant to RCW 75.20.100, 75.20.103, 75.20.106, and 75.20.160. This rule does not apply to any provisions or conditions in pamphlets or supplemental approvals as defined in WAC 220-110-020 (44)(c). A person who disagrees with a provision or condition in a pamphlet HPA or its supplemental approval may apply for an individual written HPA. A person who is aggrieved or adversely affected by the following department actions may request an informal review:
(a) The denial or issuance of an HPA, or the conditions or provisions made part of an HPA; or
(b) An order imposing civil penalties.
(2) A request for an informal review shall be in writing and shall be received by the department within thirty days of the denial or issuance of an HPA or receipt of an order imposing civil penalties. The thirty-day time requirement may be stayed by the department if negotiations are occurring between the aggrieved party and the habitat biologist and/or their supervisor. Requests for informal review shall be mailed to Department of Fish and Wildlife, Habitat and Lands Services Program, 600 Capitol Way N., Olympia, Washington 98501-1091, or hand delivered to 1111 Washington Street S.E., Habitat and Lands Services Program, Fifth floor.
(3) Upon receipt of a written request for informal agency review, the department shall initiate a review of the agency decision. This review shall be conducted by the regulatory services division manager or the division manager's designee. Upon completion of the comprehensive review, the division manager, or designee shall recommend a decision to the director or the director's designee. This recommended decision shall be approved or disapproved by the director or the director's designee within sixty days of the date the informal appeal was received by the department. The department shall notify the appellant in writing of the decision of the director or the director's designee.
(4) If, following this informal agency review process, the appellant still wishes to contest the agency action, a formal appeal may be initiated pursuant to WAC 220-110-350. Formal review must be requested within the time periods specified in WAC 220-110-350.
[Statutory Authority: RCW 75.08.080, 75.20.100 and 75.20.330. 99-01-088 (Order 98-252), § 220-110-340, filed 12/16/98, effective 1/16/99. Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), § 220-110-340, filed 11/14/94, effective 12/15/94; 87-15-086 (Order 87-48), § 220-110-340, filed 7/20/87. Statutory Authority: RCW 75.08.012, 75.08.080 and 75.20.100. 84-04-047 (Order 84-04), § 220-110-340, filed 1/30/84. Statutory Authority: RCW 75.20.100 and 75.08.080. 83-09-019 (Order 83-25), § 220-110-340, filed 4/13/83.]
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220-110-350
Formal appeal of administrative decisions.
(1) The following procedures shall govern formal appeals of department actions taken pursuant to RCW 75.20.100 or 75.20.106. This rule does not apply to any provisions or conditions in pamphlets or supplemental approvals as defined in WAC 220-110-020 (44)(c). A person who disagrees with a provision or condition in a pamphlet HPA or its supplemental approval may apply for an individual written HPA. This rule does not apply to an appeal in which a person contests the denial, conditioning or issuance of an HPA issued pursuant to RCW 75.20.103 or 75.20.160, which shall be heard by the hydraulic appeals board. A person who is aggrieved or adversely affected by the following department actions may request a formal appeal:
(a) The denial or issuance of an HPA, or the conditions or provisions made part of an HPA;
(b) An order imposing civil penalties; or
(c) Any other "agency action" for which an adjudicative proceeding is required under the Administrative Procedure Act, chapter 34.05 RCW.
(2) As required by the Administrative Procedure Act, the department shall inform the permittee, or person subject to civil penalty or order of the department, of the opportunity for appeal, the time within which to file a written request for an appeal, and the place to file it.
(3) A request for an appeal shall be in writing and shall be received during office hours by the department within thirty days of the agency action that is being challenged. Requests for appeal shall be mailed to Department of Fish and Wildlife, Habitat and Lands Services Program, 600 Capitol Way N., Olympia, Washington 98501-1091, or hand delivered to 1111 Washington Street SE, Habitat and Lands Services Program, Fifth floor. If there is no timely request for an appeal, the agency action shall be final and unappealable.
(4) The time period for requesting a formal appeal is suspended during consideration of a timely informal appeal. If there has been an informal appeal, the deadline for requesting a formal appeal shall be within thirty days of the date of the department's written decision in response to the informal appeal.
(5) The written request for an appeal shall be plainly labeled as "Request for Formal Appeal" and shall contain the following:
(a) The name, address, and phone number of the person requesting the appeal;
(b) The specific agency action that the person contests; for example, denial of an HPA, a particular condition in an HPA, order imposing civil penalties, etc.;
(c) Whether the person is the permittee, landowner, resident, or other basis for the person's interest in the agency action in question;
(d) The date of denial, issuance, or condition of an HPA, if the person is contesting denial, issuance, or conditioning of an HPA;
(e) Specific relief requested; and
(f) The attorney's name, address, and phone number, if the person is represented by legal counsel.
(6) The appeal may be conducted by the director, the director's designee, or by an administrative law judge (ALJ) appointed by the office of administrative hearings. If conducted by an ALJ, the ALJ shall issue an initial order pursuant to RCW 34.05.461. The director or the director's designee shall review the initial order and enter a final order as provided by RCW 34.05.464.
(7) All hearings conducted by the director, the director's designee, or an ALJ pursuant to subsection (6) of this section, shall comply with the Administrative Procedure Act and the model rules of procedure, chapter 10-08 WAC.
[Statutory Authority: RCW 75.08.080, 75.20.100 and 75.20.330. 99-01-088 (Order 98-252), § 220-110-350, filed 12/16/98, effective 1/16/99. Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), § 220-110-350, filed 11/14/94, effective 12/15/94; 87-15-086 (Order 87-48), § 220-110-350, filed 7/20/87. Statutory Authority: RCW 75.08.012, 75.08.080 and 75.20.100. 84-04-047 (Order 84-04), § 220-110-350, filed 1/30/84. Statutory Authority: RCW 75.20.100 and 75.08.080. 83-09-019 (Order 83-25), § 220-110-350, filed 4/13/83.]
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220-110-360
Penalties.
(1) Any person that commences any activity subject to RCW 75.20.100, 75.20.103, or 75.20.160 without having first obtained an HPA from the department, or any person that fails to comply with any of the requirements or provisions of an HPA, is guilty of a gross misdemeanor.
(2) The department may impose a civil penalty of up to one hundred dollars per day for a violation or continuing violation of RCW 75.20.100 or 75.20.103, or any provision or condition of an HPA. The department shall impose the civil penalty with an order in writing delivered by certified mail or personal service to the person who is penalized. The notice shall describe the violation, identify the amount of the penalty, identify how to pay the penalty, and identify informal or formal appeal rights for the person penalized. If the violation is an ongoing violation, the penalty shall accrue for each additional day of violation. For ongoing violations, the civil penalty may continue to accrue during any appeal process unless the accrual is stayed in writing by the department.
(3) If not timely appealed under WAC 220-110-340 or 220-110-350, the civil penalty order is final and unappealable. If appealed, the civil penalty becomes final upon issuance of a final order not subject to any further administrative appeal. When a civil penalty order becomes final, it is due and payable. If the civil penalty is not paid within thirty days after it becomes due and payable, the department may seek enforcement of the order pursuant to RCW 75.20.106 and 34.05.578.
[Statutory Authority: RCW 75.08.080. 94-23-058 (Order 94-160), § 220-110-360, filed 11/14/94, effective 12/15/94.]