The department recommends that a person aggrieved by the issuance, denial, conditioning, or modification of an HPA contact the department employee responsible for making the decision on the HPA before initiating a formal appeal. Discussion of concerns with the department employee often results in a resolution of the problem without the need for a formal appeal.
The department encourages aggrieved persons to take advantage of the informal appeal process under WAC 220-110-340
before initiating a formal appeal. However, the informal appeal process is not mandatory, and a person may proceed directly to a formal appeal.
(1) This rule does not apply to any provisions or conditions in pamphlet HPAs or supplemental approvals as defined in WAC 220-110-020
. A person who disagrees with a provision or condition in a pamphlet HPA or its supplemental approval may apply for an individual, written HPA.
(2) Any person with standing may request a formal appeal of the following department actions:
(a) The issuance, denial, conditioning, or modification of an HPA; or
(b) An order imposing civil penalties.
(3) As required by the Administrative Procedure Act, chapter 34.05
RCW, the department shall inform the HPA permittee or applicant, or person subject to civil penalty order of the department, of the opportunity for appeal, the time within which to file a written request for an appeal, and the place to file it.
(4) A request for formal appeal shall be in writing and shall be filed with the clerk of the pollution control hearings board (PCHB) and served on the department within thirty days from the date of receipt of the decision or order. "Date of receipt" means:
(a) Five business days after the date of mailing; or
(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the department, shall constitute sufficient evidence of actual receipt. The date of actual receipt; however, may not exceed forty-five days from the date of mailing.
(5) Service on the department shall be mailed to the HPA Appeals Coordinator, Department of Fish and Wildlife, Habitat Program, 600 Capitol Way N., Olympia, Washington 98501-1091; e-mailed to HPAapplications@dfw.wa.gov
; faxed to 360-902-2946
; or hand-delivered to the Natural Resources Building, 1111 Washington Street S.E., Habitat Program, Fifth floor.
(6) The time period for requesting a formal appeal is suspended during consideration of a timely informal appeal. If there has been an informal appeal, the deadline for requesting a formal appeal shall be within thirty days from the date of receipt of the department's written decision in response to the informal appeal.
(7) The request for formal appeal shall contain the information required by WAC 371-08-340
(8) The department in its discretion may stay the effectiveness of any decision or order that has been appealed to the PCHB. The department will use the standards in WAC 371-08-415
(4) to make a decision on any stay request. At any time during the appeal to the PCHB, the appellant may apply to the PCHB for a stay of the decision or order, or removal of a stay imposed by the department.
(9) If there is no timely request for an appeal, the department action shall be final and unappealable.
[Statutory Authority: RCW 77.12.047
and 77.55.021. WSR 10-19-051 (Order 10-242), § 220-110-350, filed 9/13/10, effective 10/14/10. Statutory Authority: RCW 77.55.091
(2), 77.12.047, and 77.04.020. WSR 09-02-017 (Order 08-318), § 220-110-350, filed 12/29/08, effective 4/3/09. Statutory Authority: RCW 75.08.080
, 75.20.100 and 75.20.330. WSR 99-01-088 (Order 98-252), § 220-110-350, filed 12/16/98, effective 1/16/99. Statutory Authority: RCW 75.08.080
. WSR 94-23-058 (Order 94-160), § 220-110-350, filed 11/14/94, effective 12/15/94; WSR 87-15-086 (Order 87-48), § 220-110-350, filed 7/20/87. Statutory Authority: RCW 75.08.012
, 75.08.080 and 75.20.100. WSR 84-04-047 (Order 84-04), § 220-110-350, filed 1/30/84. Statutory Authority: RCW 75.20.100
and 75.08.080. WSR 83-09-019 (Order 83-25), § 220-110-350, filed 4/13/83.]