Proposed fish passage rules expand state authority

The Washington Department of Fish and Wildlife (WDFW) released final draft rules for fish passage and screening. These rules cover substantial issues that will affect your city, such as standards for consequences of ownership of a fish blocking barrier and consideration of climate impacts in culvert design.

The stated goals of the rulemaking are to develop a new rule section under Title 220 Washington Administrative Code (WAC) as necessary to implement chapter 77.57 RCW. WDFW approached this in two ways:

1. Codify standards used by WDFW for:
   1. Instream structures;
   2. Screening and diversions; and
   3. Climate adaptive water crossing structures.
2. Address compliance issues for instream structures and screening.
   1. Steps to bring owners into compliance.
   2. The effects of non-compliance.

In 2021 and 2022, AWC and DFW hosted an opportunity for cities to provide early feedback on the effort and begin the process of engaging with DFW on this rulemaking. However, we have concerns that the final draft rules exceed the authority granted under Chapter 77.57 RCW, which allows the agency to:

1. Remove, relocate, reconstruct, or modify the fish barrier “without cost to the owner” for barriers in existence on September 1, 1963; and
2. Construct a fishway or remove the dam or obstruction and place a lien on the property for expenses incurred.

Under the proposed rules, the owner of a fish passage barrier who does not voluntarily comply with the new rules “to achieve a compliant structure” can face enforcement action by the agency including a mandatory notice to comply and, when appropriate, civil and/or criminal enforcement actions—such as injunctive relief or criminal prosecution.

WDFW did change the applicability section between the second and final drafts to include a carve out for structures in existence on or before September 1, 1963, which is consistent with their statutory authority:

For fishways and water division devices in existence on September 1, 1963, or before, the director may authorize removal, relocation, reconstruction, or other modification of an inadequate fishway or fish screen without cost to owner. The fishway or diversion structure will be maintained at the expense of the owner.

However, for barriers constructed after September 1, 1963, these rules exceed the express or implied grant of authority by the Legislature in Chapter 77.57 RCW. The rule will officially publish August 16.

How to get involved:

• WDFW is hosting a public meeting on September 13 from 1:30–3:30 pm.
• WDFW Commission briefing and public hearing is scheduled for September 28.
• Public comments are accepted through September 29, 2023.

Links to the public meeting and hearing, draft rules, and background information are found on WDFW’s website.