Shoreline Permitting for Drought Emergency Projects

The 2015 drought has led to formal drought declarations affecting much of Washington State.  Drought conditions may trigger emergency work to secure vital water supplies and sustain fish passage.  By state statute, drought-related emergency work requires expedited permit and approval processes by both local governments and state agencies.

This web page describes legal authorization and requirements for expedited permits and exemptions under the Shoreline Management Act (SMA) and related statutes.

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Emergency water supplies

Projects associated with emergency water rights require approval of Ecology’s Water Resources Program and can include alterations to surface water withdrawals or diversions and temporary wells allowed as an emergency water supply. This work can be vital to serve municipalities, agriculture and fish hatcheries. In the 2001 drought, 172 temporary water rights and changes were issued. In the 2005 drought, over a dozen fish hatcheries required emergency work to augment water supplies.

Authority

Washington’s Water Code specifies that all state and local agencies shall expedite the processing of the permits or authorizations and shall provide a decision to the applicant within fifteen days. The code also exempts emergency water facility projects from SEPA review [RCW 43.83B.410(2)].

RCW 43.83B.410(1)(b)

All state and local agencies with authority to issue permits or other authorizations for such works shall, to the extent possible, expedite the processing of the permits or authorizations in keeping with the emergency nature of the requests and shall provide a decision to the applicant within fifteen calendar days of the date of application.

The direction to provide decisions on emergency water withdrawal projects 15 days from the date of application is also included directly in the SMA at RCW 90.58.370. This 15-day period includes the time required for both local and state review. 

RCW 90.58.370

Processing of permits or authorizations for emergency water withdrawal and facilities to be expedited.

All state and local agencies with authority under this chapter to issue permits or other authorizations in connection with emergency water withdrawals and facilities authorized under RCW 43.83B.410 shall expedite the processing of such permits or authorizations in keeping with the emergency nature of such requests and shall provide a decision to the applicant within fifteen calendar days of the date of application.

Under normal circumstances, construction pursuant to a permit may not be authorized until 21 days from the date of a permit decision, or until all appeal proceedings are concluded [RCW 90.58.140(5)]. Ecology’s interpretation is that, while appeals can still be filed, a stay on construction is inconsistent with the explicit directive in the SMA to expedite authorizations for drought-related emergency projects.

Fish passage projects

In some cases extreme low flows require WDFW to channel water to sustain fish passage. These projects are most commonly accomplished by hand though sometimes they require equipment working in streams. Projects may include temporary flumes or other installations to channel water and fish. In 2005, WDFW conducted over 70 temporary fish passage modifications in rivers and streams in response to extreme low water conditions.

Authority

State statute [RCW 77.55.181(4)] provides expedited Hydraulic Project Approval procedures for qualifying fish passage projects. Local governments may not require permits or charge fees for projects that meet the criteria defined in the statute.

The SMA [RCW 90.58.147] exempts fish passage projects from requirements for a shoreline substantial development permit (SDP). Ecology considers WDFW in-stream work to channel flows for fish passage and survival to qualify as exempt from SDP permit requirements. Local governments are required to send a letter to the project proponent affirming the project is substantially consistent with the local shoreline master program. 

RCW 90.58.147 Substantial development permit - Exemption for projects to improve fish or wildlife habitat or fish passage

(1) A public or private project that is designed to improve fish or wildlife habitat or fish passage shall be exempt from the substantial development permit requirements of this chapter when all of the following apply:

(a) The project has been approved by the department of fish and wildlife;

(b) The project has received hydraulic project approval by the department of fish and wildlife pursuant to chapter 77.55 RCW; and

(c) The local government has determined that the project is substantially consistent with the local shoreline master program. The local government shall make such determination in a timely manner and provide it by letter to the project proponent.

(2) Fish habitat enhancement projects that conform to the provisions of *RCW 77.55.290 are determined to be consistent with local shoreline master programs.

*Reviser's note: RCW 77.55.290 was recodified as RCW 77.55.181 ….

Boat launch modifications

Extreme low water conditions can trigger the need to extend boat launches to keep them open. In some cases, gravel and rock berms that are created by repeated boat retrievals must be removed to keep a ramp open. In 2005, WDFW conducted emergency work at six boat access sites in response to drought conditions.

Authority

RCW 90.58.030(e) exempts emergency construction from the definition of  "substantial development." Ecology considers the extension of boat launches or removal of accumulated rocks and gravel at boat launches due to declared drought conditions to be "emergency construction." Thus, this work is appropriately exempted from the requirement for a shoreline substantial development (SDP) permit.

RCW 90.58.030 (e)

"Substantial development" shall mean any development of which the total cost or fair market value exceeds five thousand dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state… The following shall not be considered substantial developments for the purpose of this chapter: (iii) Emergency construction necessary to protect property from damage by the elements;…

Coordinating with Ecology

Ecology recommends local governments contact our regional staff as early as possible regarding drought-related emergency work subject to the Shoreline Management Act.

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