By Ann Gygi
With few exceptions, work below the ordinary high water mark (OHWM) of a stream requires an HPA; however, developers are not necessarily relieved from that requirement by staying above the OHWM either. The Washington Department of Fish and Wildlife (WDFW) administers HPAs, and a 2016 Washington Attorney General opinion supports WDFW’s authority above the OHWM. If a project includes construction or work that will use, divert, obstruct, or change the natural flow or bed of the stream, then it falls within WDFW’s asserted jurisdiction. It is not the location but the effect of work in or near the water that triggers the HPA. Importantly, however, WDFW can only condition or deny the HPA to protect fish life. Developers should work with their consultants to evaluate whether their project requires an HPA.