Ms. Randi Thurston
Ms. Lisa Wood/SEPA responsible official
Washington Department of Fish and Wildlife
600 Capitol Way North
Olympia, WA 98501-1091
RE: Hydraulic Code Proposed Rulemaking and SDPEIS
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Ms. Thurston and Ms. Wood,
I am writing to you today as a citizen who is greatly concerned about the critical nearshore
habitats and fish life of Puget Sound. In recent decades there have been significant declines in
the marine vegetation, forage fish, salmonid and other listed species that the department is
required to protect during permitting considerations under the hydraulic code. If we are to be
successful in restoring the Sound, we need act now and I am urging the department to take
actions during the proposed hydraulic code rulemaking that will result in clear increases in
habitat and fish protection. I would ask that WDFW adopt the version of the proposed update
identified as Alternative 3 in the Supplemental Draft Programmatic Environmental Impact
Statement (SDPEIS). This alternative is most consistent with the Hydraulic Code’s directive to
protect fish life.
My comments on the proposed hydraulic code rulemaking and SDPEIS are as follows:
Proposed rulemaking
Correct Key Definitions

Amend the definition of “Protection of Fish Life” in WAC 220-660-030. WDFW should
keep the existing definition for the “Protection of fish life” meaning the “prevention of
loss or injury to fish or shellfish, and protection of the habitat that supports fish and
shellfish populations,” rather than amending language to define it as “avoiding and
minimizing impacts to fish life and fish habitat through mitigation sequencing.”

Add a definition “no net loss” outlining that existing conditions of shoreline ecological
functions should remain the same as before a development action is implemented, and
that the no net loss standard is designed to halt the introduction of new impacts to
shoreline ecological functions and resulting habitat loss resulting from new development.
Strengthen General Provisions

Eliminate the exemption for the installation aquaculture facilities in WAC 660-040(2)(l).
There is no statutory exemption to this development, which often results in significant
nearshore impacts, and allowing construction projects to be sited and built without
department review contradicts the fish life protection mandate of the hydraulic code.

Retain existing language related to permit denial. Existing language appropriately directs
WDFW to deny a permit when the project will result in direct or indirect harm to fish life.
When combined with the proposed definition for “protection of fish life,” defined as
mitigation sequencing, the new rules could be interpreted to mean that a permit cannot be
denied so long as mitigation sequencing was followed – regardless of impact.

Please eliminate Model and General HPAs. Because they do not require site-specific or in
some cases even project-specific review, these newly introduced permit types present
significant risk of impact to protected fish species and habitats. In recent years, the
legislature specifically struck the proposed creation of General permits during bill
consideration and there is currently no statutory directive for either permit structure.
Correct Gaps in Mitigation Requirements

Amend the language at WAC 220-660-080(4)(c) so that WDFW may limit compensatory
mitigation to onsite efforts unless a project applicant prepares a mitigation plan and
specifically requests the plan be reviewed under RCW 90.74.005 through 90.74.030 as
currently outlined in RCW 77.55.241.

Eliminate the mitigation banking and in-lieu fee programs that have been introduced.
These proposed programs do not have any statutory direction and allowing a project
applicant to pay a fee or purchase credits for habitat damage rather than undertake
department evaluated and monitored mitigation that can be measured for success is a step
backwards in the State’s efforts to restore Puget Sound.

Please add language that would require compensatory mitigation for the repair or
replacement of structures due to the increased duration of habitat impact.
Provide Appropriate Protections for Special Saltwater Habitats and Fish Species

Add macroalgae as a “saltwater habitat of special concern” and do not limit protection to
only to those macroalgae beds in herring spawning areas. Macroalgae is used by a wide
range of species – including juvenile salmon.

Add lingcod nests as a saltwater habitat of special concern rather than just the settlement
areas so that the eggs themselves are protected from construction impacts.

Remove the word “adjacency” from section 220-660-320(b). Nearshore reaches with
suitable forage fish spawning habitats should be protected - particularly when there have
not been adequate studies done to fully determine the presence or absence of spawning.
Provide Appropriate Protections for Forage Fish

Omit language related to “documented” forage fish spawning areas and add regulations
added to protect potential forage fish spawning habitats that have not been historically
evaluated. Remove the word “documented” in section 220-660-330 and require preconstruction spawning surveys in all areas with suitable bed materials.

Add language to require the applicant to present department staff with the results of the
survey documenting full absence of spawning at least two days before planned work start
in the areas where a forage fish survey is required. No work should be allowed until the
department grants clear authorization to start and a new survey should be required if
construction is not completed within 7 days.

Add provisions to protect adult fish from construction impacts during spawning and prespawning activity.
Provide Appropriate Protections for Seagrass and Macroalgae

Firmly require vegetation surveys for all overwater work including marina expansion,
marine terminal construction, and boat ramps.

In addition to being required for new dredging, vegetation surveys should also be
required for dredging in areas where previous dredging work has been intermittent
because important seagrass and macroalgae beds may have regrown.

Require vegetation surveys to be conducted between June 1 and October 1. Survey work
outside of this growing season, may miss the presence of eelgrass or macroalgaes that
diminish in the winter season.
Protect Nearshore Habitats from Unnecessary Armoring Impacts

Require an applicant to submit an engineer’s report that evaluates the need for bank
protection for bulkhead proposals processed under RCW 77.55.141 and RCW 77.55.021.
If a need is determined, a report evaluating avoidance actions design techniques should
also be required.

The preferred alternative sequence current in the proposed rules as a suggestion should be
a mandatory set of steps an applicant must take. A new hard armored bulkhead should not
be allowed unless an engineer’s report documents a clear need for protection, and the
avoidance steps and/or least impacting design types cannot be implemented.
Protect Nearshore Habitats from Overwater structure Impacts

As with bulkheads, new docks and other overwater structures, including marinas and
marine terminals, should have impact avoidance requirements. For example, the
preference for use of existing facilities, buoys and joint use docks before approval of new
docks.

If a new private dock, marina or marine terminal is allowed, limit the width to 4 feet and
require all surfaces to be 100 percent grated with at least 60 percent open area to reduce
shading impacts.

Public docks should be restricted to no more than 10 feet across and should also be fully
grated with at least 60 percent open area.
Establish Clear Directives and Requirements to Protect Habitat

To ensure the protection of habitat and fish species, clear directives should be included in
the proposed rules. Change “may” to “Shall” or “Must.” Change “avoid or minimize” to
“avoid” and omit any reference to “if possible” or “when possible.”

Add language to require the evaluation of cumulative impacts to ensure an overall no net
loss standard is met and to comply with the WDFW policy outlined in the “Requiring or
Recommending Mitigation” document which specifies that “Cumulative impacts of
projects shall be considered and appropriate measures taken to avoid or minimize those
impacts.”

Include a stop work condition as a common technical provision. Just like the commonly
used requirement to stop work if a fish kill occurs, an applicant must be required to
temporarily stop work if given notice by the department due to a failure to comply permit
if environmental damage is occurring.
Supplemental Draft Programmatic Environmental Impact Statement (SDPEIS)

Although the SDPEIS states that the preferred alternative would result in improved
protections over existing rules, the proposed rules contain language changes which result
in a generalized weakening of the regulations. For example, amending “avoid to “avoid
or minimize” weakens the rules by allowing new impacts. And, “Protection of Fish Life”
has moved from a definition of protection to a description of mitigation sequencing.

The SDPEIS does not provide evaluation of alternatives 3 and 4 in relationship to no
action alternative. In most discussions, the document evaluates the preferred alternative
in comparison to no action alternative, but provides only a bulleted list of provisions for
alternatives 3 and 4. Please amend the SPDEIS to evaluate each alternative in comparison
to the no-action alternative to ensure the highest degree of fish and habitat protection is
met.

SDPEIS documents do not appear to have used the best available science. Much of the
WDFW support appears to be from the department’s own White Papers. The Puget
Sound Partnership, federal agencies and many studies from top nearshore ecologists have
been released in recent years yet very few appear to have been considered in the
development of the rules or EIS documents. Please ensure an exhaustive review of these
high value documents prior to finalization of the rules or the SEPA analysis.
Thank you for the department’s work in preparing the proposed rules and the related SEPA
documentation. I am requesting that the comments provided here are fully considered by the
department with amendments made to the proposed rules prior to adoption.
Sincerely
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