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BIAW Weighs in on HPA Rule-Making
January 17, 2020

The fallout from HB 1579, the Hydraulic Permit Approval (HPA) bill passed last session, has already begun. BIAW has filed a lawsuit to try to prevent the bill from taking effect, but that hasn’t stopped the Department of Fish and Wildlife (DFW) from starting to put forward rules based on the new law.

HB 1579 did two things that affect BIAW members: It allowed the Department to deny HPA permits for residential bulkheads, even if the bulkhead is compliant with their local shoreline master program, and it increased the maximum penalty amount from $100 to $10,000. In the rulemaking process, DFW had to allow for public comment at a meeting of its leadership. Owner of Cascade Custom Homes and Design Inc. Jay Roberts and BIAW Associate General Counsel Hannah Marcley attended the public comment meeting on Jan. 17 to tell DFW about the harm the new rules would do to builders.

Marcley began by explaining the structural defects in the rule. Roberts then explained how those defects cost him in his business.

“First, the agency is attempting to enact a version of the bill that did not pass both houses of the Legislature … and this is very concerning for us because it’s a procedural issue that undermines the rest of the rule system,” Marcley explained to the DFW Commission. “Implementing the will of the Legislature is the overall goal, but the will of the Legislature is rather unclear. There is no specific penalty amount included in the bill.”

The lack of clarity cannot all be blamed on the legislative process, though. As Marcley pointed out, “The project component definition includes multiple parties. If it is the agency’s intent to say that all parties are responsible in equal amounts, we would have a problem with that.”

Next, Roberts discussed the proposed rule’s impact on his business. “Obviously being on an island, a lot of what I build is along the water and with this bill, part of the challenges we have are with prospective clients who do not understand these rules and rely on builders to explain these rules to them. And as the rules stand as they are written now, they are very vague,” Roberts told the commissioners. “For me to have to explain these rules to somebody, it would be almost impossible.”

Jay went on to point out that, as a responsible contractor, he warns potential clients about the possible fine. “We will always do our best to not step over the line, but we need to forewarn our clients, and at $10,000, I’m not a big general contractor. Is it going to be the homeowner? The Customer? The excavator? If there are five people is that a $50,000 fine? We are all on the same page and want to preserve salmon habitat. We just want to play by the same playbook.”

In a bright spot on the otherwise gloomy hearing, DFW did state that the fine would not be issued on a per-day basis. Previously, they had insisted it had the right to issue a $10,000 per violation per day penalty.

We will keep you posted on any developments with this rule. If you have any questions about HB 1579 or the related rules, please contact Associate General Counsel Hannah Marcley by email at hannahm@biaw.com and by phone at (360) 352-7800 ext. 118.

To watch his testimony, click here.

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