January 2000
Contact: Tim Smith, Legislative Liaison (360) 902-2223

Situation

By law, the Washington Department of Fish and Wildlife (WDFW) is responsible for preserving, protecting and perpetuating all fish and shellfish resources of the state. To assist in that effort, the 1949 Legislature passed a law known as the "hydraulic code," which requires any person or organization to obtain a permit for any construction activity "which uses, obstructs, changes or diverts the bed or flow of fresh or salt waters of the state." The code covers a wide range of activities – from the construction of bridges and piers to the installation of culverts and the removal of debris – for the purpose of preventing degradation of fish and shellfish habitat that might otherwise result from unbridled construction near state waters.

Problem

For the most part, the state hydraulic code works as originally conceived. WDFW denies less than 1 percent of the approximately 6,000 to 8,000 applications received each year, and most applicants follow the conditions of the permit. However, for those who fail to obtain a permit or violate its conditions, the current legal penalties are either inadequate or excessive and largely ineffective in preventing damage to critical marine and fresh water habitat. Current law provides for two types of penalties:

• Civil penalties: Current law allows WDFW to levy a fine of up to $100 per day for a violation of the hydraulic code. The subject of this action has up to 30 days to appeal. These provisions are problematic for several reasons. First, the maximum fine of $100 per day presents little deterrence to a major developer, who may view the fine as simply a "cost of doing business." Moreover, the civil code gives WDFW no authority to stop activities that would cause further damage to the habitat at any point in the process.

• Criminal penalties: The law also authorizes criminal penalties of up to $5,000 and a year in jail for a violation of the hydraulic code. In most cases, this simply overshoots the mark. WDFW's interest is in preventing damage to the environment, not locking people up for violations. The court system, already congested with drug cases and the prosecution of violent crime, has historically put a low priority on violations of the hydraulic code. The result is that the time and cost involved in pursuing criminal charges against a violator effectively rule this out as an option in most cases.

Proposal

WDFW is proposing legislation that would strengthen civil measures against violators of the hydraulic code and give the Department the authority to issue a "stop work" order when it is deemed necessary to prevent further environmental damage. The "stop work" provision is similar to the authority currently vested in the state Department of Natural Resources and the Department of Ecology to protect other state resources. It would give WDFW the authority to issue a "stop work" order on a project out of compliance with a permit (or when no permit was obtained), and to order corrective action at the site. The subject of such an order would have 20 days to appeal this action to the Department.

Criminal penalties would remain in force, and those who do not comply with a "stop work" order or fail to take any required corrective actions could be subject to a gross misdemeanor, punishable by a fine of up to $5,000 and a year in jail. The Department's proposal would also give the Washington Fish and Wildlife Commission more latitude in establishing civil penalties, increasing the maximum fine from the current $100 per day to $500 per day for those who violate the conditions of a hydraulic permit.

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