WSR 99-07-075

EMERGENCY RULES

FOREST PRACTICES BOARD


[ Filed March 17, 1999, 11:32 a.m. ]

Date of Adoption: February 10, 1999.

Purpose: To modify forest practices rules to provide greater protection for threatened and endangered salmonids that have been listed by the federal government. This is a procedural rule that classifies forest practices in mapped areas as Class IV-Special, requiring additional environmental review.

Citation of Existing Rules Affected by this Order: Amending WAC 222-10-040 Class IV-Special threatened and endangered species SEPA policies, 222-16-010 General definitions, 222-16-050 Classes of forest practices, 222-16-080 Critical wildlife habitats (state) and critical habitat (federal) of threatened and endangered species, 222-24-050 Road maintenance and 222-30-040 Shade requirements to maintain stream temperature; and new sections WAC 222-16-088 Salmonid listed areas, 222-10-020 SEPA policies for certain forest practices within 200 feet of a Type 1 Water, and 222-10-043 Salmonids.

Statutory Authority for Adoption: RCW 76.09.040 and [76.09.]050 and chapter 34.05 RCW.

Other Authority: Chapter 43.21C RCW.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: This document combines the findings prepared individually for listed steelhead and bull trout. The Forest Practices Board and the Department of Ecology find good cause for an emergency for salmonids, including bull trout. This document organizes and summarizes information presented to and discussed by the board in public meetings. The reasons for this finding are as follows:

1. SALMONID NEEDS.

Salmonid Biology - General: The family Salmonidae includes many individual species of salmon, steelhead and trout. Salmonids have several life history phases which include spawning, rearing and migration. Fertilized salmonid eggs require sediment-free and cool water in order to incubate and hatch. Once the eggs hatch, the juvenile salmonids require rearing habitat which includes forage, clean cool water, and cover provided by rocks, banks and large woody debris. Finally, salmonids need to be able to have stream passage at all life history stages.

Bull Trout Biology: Bull trout (Salvelinus confluentus), a native char, are a cold water species that moved north and into higher elevations after the last glacial period. Bull trout exhibit both migratory and nonmigratory life history forms (Brown 1994). Resident populations generally spend their entire lives in small headwater streams, whereas migratory populations spawn and rear in headwater tributary streams for several years before migrating to either larger river systems (fluvial), lakes and reservoirs (adfluvial), or the ocean (anadromous) for adult rearing. Bull trout generally concentrate in reaches influenced by groundwater where temperature and flow conditions may be more stable (Baxter and Hauer, in prep; Baxter et al., to be published; MBTSG 1998).

Bull Trout vs Dolly Varden: Dolly Varden (Salvelinus malma) and bull trout (Salvelinus confluentus) were considered to be the same species until the late 1970's when Cavender (1978) provided evidence to suggest that there was a dichotomy. The American Fisheries Society accepted Cavender's work in 1980 and recognized the separation of the two species (Mongillo 1993). However, the two species are difficult to differentiate in the field; extensive and costly genetic work must be done in the laboratory. Furthermore, their life histories and habitat requirements are similar, if not identical (Mongillo 1993, Brown 1994). Therefore, from a management and recovery perspective, they are currently considered the same species. As pertains to an emergency rule, while coastal and Puget Sound populations can be either species or a combination of Dolly Varden and bull trout, all populations in eastern Washington and the Columbia River drainage are assumed to be bull trout.

How Bull Trout Habitat Requirements Differ from Other Salmonids:

Temperature requirements for bull trout are colder than for other salmonids (especially for spawning and juvenile rearing); in some cases, so cold as to exclude other salmonids, which would otherwise compete for habitat and food. When living within the same habitat with other salmonids, colder temperatures can give bull trout the competitive advantage (MBTSG 1998).
Bull trout will often stratify higher in the watershed than other salmonids (especially resident life forms and for spawning and rearing). (Adams 1994.)
Because bull trout spawn higher in the headwaters, they can be more vulnerable to fish passage problems.
Bull trout spend a longer period [of] time in the gravels before emergence (220+ days) and thus are more vulnerable to sediment and scouring peak flows.
Factors Limiting Habitat of all Salmonids: In order to provide cool, clean water and habitat that includes pools, clean gravel and stable channels, the following habitat requirements are necessary in order to provide for healthy salmonids: Shade, stable stream banks, large woody debris, and fish passage.

Shade and Stream Temperature. Shade is needed to provide cool water temperatures. To achieve this, trees along the riparian zones of fish-bearing streams and along contributing nonfish-bearing streams must be retained to assure that the solar radiation does not heat the streams to a point that limits the productivity, or in some severe cases, the mortality of salmonids. High temperatures can also block or delay fish migration.

The current state water quality standard for stream temperature is intended to fully protect salmonids. Shade must be retained, in order to keep water temperatures below 16 centigrade.

Other factors can increase temperature such as sediment deposition and resultant stream widening. Shade removal in nonfish-bearing streams can also contribute to downstream temperature increases in fish-bearing waters. Shade removal can also impact cold groundwater sources and microclimate.

Stream Bank Stability and Forest Roads. Fine sediment in spawning gravel reduces the survival of salmonid eggs. Sediment can also limit the ability for juvenile and adult salmonids to feed. Stream bank instability is a major contributor of sediment to streams. Stability of stream banks is necessary to this as a source of sediment (if banks are disturbed they can introduce sediment). Forest roads can also contribute sediment laden water to streams from ditches and water crossings. Roads can also change hydrologic regime of the stream causing higher peak flows which can cause more sedimentation.

Large Woody Debris. Rearing or juvenile salmonids need pools and cover for refuge and desired feeding conditions. Stream morphology that contains adequate pools requires large woody debris (LWD) on a continuous basis. The LWD provides structure in the streams for the formation of pools and cover. It also moderates the movement of sediment. Trees from the adjacent riparian stand are an important source of LWD.

Fish Passage. Adult fish need to move upstream to access spawning areas. Juvenile fish need to move upstream and downstream to find desirable feeding conditions or take refuge from undesirable environmental conditions. Forest road stream crossings often block fish passage.

Summary. The literature indicates that in order to protect bank stability, a 30-foot buffer is recommended. In addition, to achieve 95% recruitment of the key piece wood, (wood that is large enough to start the forming of log jams indexed by stream size) approximately 100 foot buffer is required. Additional buffers may be needed to account for areas that have high susceptibility to windthrow, provide additional large woody debris (LWD) recruitment, unstable slopes protection, protection of seeps, springs and stream associated wetlands. Other functions include microclimate (air temperature and humidity, etc.).

Additional Factors Limiting Bull Trout Habitat: The decline of bull trout throughout their range has been linked to habitat destruction and migration barriers, as well as other factors such as introduced exotic species (Dambacher and Jones 1997). Bull trout spawning, incubation, and juvenile rearing generally occur in second through fourth order streams which are most susceptible to effects resulting from harvest. Effects may be more obvious on smaller streams than on larger ones. Timber harvest can influence stream temperature, LWD recruitment, local runoff patterns, erosion, sedimentation, channel aggradation, and channel stability (MBTSG 1998).

Shade and Stream Temperature. Bull trout are glacial relics and require a narrow range of cold temperature conditions to rear and reproduce (Adams and Bjornn 1997, Buchanan and Gregory 1997, Brown 1994). Temperatures required to initiate spawning (late August through October) vary from 4-11C, depending on the drainage (Buchanan and Gregory 1997, Fraley and Shepard 1989, McPhail and Murray 1979, Wydoski and Whitney 1979, Kraemer 1991). Egg incubation (late August through April) occurs at 1-6C (Buchanan and Gregory 1997, Weaver and White 1985, McPhail and Murray 1979, Brown 1994). Optimal temperature ranges for juvenile rearing occur from 4-10C (Buchanan and Gregory 1997, McPhail and Murray 1979). In the Flathead drainage in Montana, bull trout juveniles have been rarely observed in streams with summer temperatures exceeding 15C (Fraley and Shepard 1989). Adults are known to tolerate somewhat higher temperatures (Kraemer 1991, Brown 1994); however, they are seldom found in streams with summer temperatures exceeding 18C and are often found near cold perennial springs (Shepard et al. 1984b, Brown 1994). Higher densities of adult bull trout have been found to occur at temperatures less than 12C (Adams 1994, Buchanan and Gregory 1997, Clancy 1996). Optimum temperatures for migration are 10-12C (Buchanan and Gregory 1997, McPhail and Murray 1979).

Various factors contribute towards providing for cool water in streams (shade, groundwater contribution, elevation, etc.). Shade is the primary factor (impacted by land management) which is needed to reduce solar radiation to the stream, to protect groundwater sources and seeps and springs, and to provide for microclimate. Shade contributing trees within the riparian zone must be retained in both fish bearing and contributing nonfish-bearing streams to maintain cool water temperatures. Sediment deposition and resultant stream widening can also cause an increase in stream temperature, as well as alteration of natural streamflow regimes and reduced groundwater inflows (MBTSG 1998).

The current state water quality standard for stream temperature is targeted to maintain water temperatures below 16 and 18C depending on the Department of Ecology stream class. However, because bull trout and Dolly Varden have temperature requirements which are below those for other salmonids, the current water quality standard is not adequate. The United States Environmental Protection Agency has established temperature criteria for bull trout (now used as a state water quality standard in Idaho). The temperature standard to meet bull trout requirements is set at 10C expressed as a consecutive seven-day average of the daily maximum temperatures for June, July, August and September. It is believed that if a summer temperature criterion of 10C is met, natural seasonal variability in stream temperatures will result in attainment of appropriate thermal requirements during the remainder of the year in bull trout spawning and juvenile rearing areas (United States Environmental Protection Agency 1997).

Sediment and Roads. The long overwinter intragravel incubation and development for bull trout (average two hundred twenty days) leaves them vulnerable to increases in fine sediments and degradation of water quality (Fraley and Shepard 1989). A significant negative correlation between fry emergence of bull trout and the percentage of redd materials smaller than 6.35 mm was found by Weaver and Fraley (1991). Analyses conducted within the Columbia River Basin support the conclusion that increasing road densities are correlated with declining aquatic habitat conditions and aquatic integrity. Results show that bull trout are less likely to use moderate to highly roaded areas for spawning and rearing, and if found in these areas, they are less likely to be at strong population levels (Lee et al. 1997; Baxter et al., to be published; MBTSG 1998).

Stream bank stability must be maintained to prevent increases in sediment inputs to the stream (from forest practices). Construction and maintenance of roads must be conducted in ways which minimize road density and cut off delivery of sediments to streams. Roads should also be constructed and maintained to prevent changes to the hydrologic regime resulting in higher peak flows and increased sedimentation. Ground disturbance should be minimized and mitigated. Best management practices for sediment and roads should apply to nonfish-bearing streams as well as fish-bearing streams.

Large Woody Debris. Large woody debris is important for the formation of deep pools and habitat complexity needed by bull trout. Adult bull trout prefer deep cold pools, often associated with the cover of large woody debris, for foraging and for holding during migration (Brown 1994, Fraley and Shepherd 1989, Shepard et al. 1984b, Goetz 1989). Juvenile rearing of bull trout is also often associated with pools with shelter-providing large organic debris or clean cobble (McPhail and Murray 1979). A strong preference exists for plunge and scour pools over all other habitat types in Southeast Washington (Brown 1994). Large woody debris is also necessary to maintain the step pool formation in steeper headwater streams inhabited by bull trout, and for sediment storage.

Fish Passage. Due to loss of connectivity, many bull trout populations have become fragmented throughout their range, and remnant headwater populations are all that remain for some drainages. Fish passage barriers result in the loss of genetic exchange, loss in the ability to respond to changes in seasonal habitat requirements and conditions, loss in the ability to recolonize habitats after disturbance regimes, and often extinction of local populations (Rieman et al. 1993, MBTSG 1998). Barriers not only include manmade barriers at road crossings, but also low flows caused from aggregation of excessive coarse sediment, and elevated temperatures.

2. ENDANGERED SPECIES ACT LISTINGS AND THE FOREST PRACTICES ACT.

The Endangered Species Act (ESA) was enacted to conserve threatened and endangered species and the ecosystems upon which they depend. Four ESA listings have occurred in the last year. In August of 1997, upper Columbia steelhead was listed as endangered and the Snake River steelhead was listed as threatened. In March of 1998, the lower Columbia steelhead was listed as threatened. Finally, in June 1998, the Columbia River bull trout was listed as threatened.

ESA listings lead to "take" being prohibited. "Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in any such conduct. "Harm" can include significant habitat modification or degradation. In addition, the listing itself is indicative of the need to provide protection of the habitat required by these species to assure recovery of the species and protection from harm.

A governmental agency can be responsible for a take if it authorizes the activity that exacts a taking. In a March 1998 decision, the United States Court of Appeals for the First Circuit ordered a Massachusetts agency to prevent the taking of the northern right whale, an endangered species. The court found whales could be harmed from entanglement in fishing gear from commercial fishing activities authorized by agency regulations. The court found the state licensed the commercial fishing in a manner likely to cause harm, even though its actions were only an indirect cause. Thus, the Forest Practices Board and the Department of Ecology could be vulnerable for take if permits continue to be approved without consideration of listed species protected from harm. Actions to enforce the ESA could be brought by the federal government or other third parties.

The ESA requires federal agencies to examine the impact of their actions on protected species. The Washington Forest Practices Board has been working with the United States Fish and Wildlife Service (USFWS) to have the existing state forest practice rules for the northern spotted owl recognized as part of a proposed federal rule providing protection of that species under the ESA. The USFWS has consulted with the National Marine Fisheries Service (NMFS) regarding how the anadromous (listed and proposed to be listed) fish may be impacted by the proposed federal rule. In a letter dated September 16, 1998, NMFS concluded that the existing state forest practice rules "do not leave adequate riparian buffers to provide the important ecosystem functions necessary to support the biological requirements of anadromous salmonids." NMFS indicated that "any further degradation of habitat conditions that reduces essential habitat functions may have a significant impact, which poses an unacceptable risk to the survival and recovery" of certain salmonid evolutionarily significant units (ESUs), including the upper Columbia steelhead addressed in the emergency rule.

Oregon had developed a plan to protect salmonids which was relied on by NMFS in its decision not to list certain species of salmonids as threatened. The Oregon plan was based largely on future actions and voluntary efforts. In June 1998, a federal court rejected this decision as inadequate to prevent endangerment to salmonids under the ESA. In Washington, the forest practice rules also rely on voluntary efforts. The watershed analysis process (chapter 222-22 WAC) is entirely voluntary. Voluntary efforts are not adequate to prevent endangerment to already listed salmonids. Emergency action is necessary because of the state's obligation to comply with the ESA. This emerging and unexpected development makes it clear that the existing rules are not adequate and the listed species are in jeopardy.

3. CONTINUING TO APPROVE FOREST PRACTICES PERMITS IN LISTED AREAS.

Forest Practices Applications in Listed Areas: The listed areas of the state contain nearly more than eleven million acres of nonfederal land, of which about 4.3 million acres are state and private forest land covered by the current forest practice rules. The number of ESU acres are:

Listed Areas (ESUs)Total Nonfederal AcresState and Private Forest Land Acres
Steelhead only2,874,4631,398,034
Bull trout only5,122,3882,190,251
Steelhead/bull trout Overlapping Areas3,108,211750,994
Total11,105,0624,339,279
Most of the habitat that salmonids seek for spawning and rearing are in the forested areas of the state. This portion of the habitat continues to be critical to the survival and well-being of these species. (See also the map in WAC 222-16-088.)

When the ESA listings occurred, there were approximately 823 forest practices applications/notifications already approved in the steelhead listed areas, and 575 in bull trout listed areas. Since operations under these permits may have some impact on salmonid habitat, these applicants were sent letters notifying them of the listings. If they had questions, the letter said they should contact National Marine Fisheries Service directly for clarification whether their operations may cause a concern for listed steelhead.

Since the listings, one hundred forty one applications/notifications have been approved within two hundred feet of listed steelhead waters, and one hundred twenty within two hundred feet of listed bull trout waters. These permits contain a note to applicants warning them that this state permit does not necessarily meet federal law under the ESA.

The department estimates that, additionally, about 1,700 to 1,800 applications in steelhead and bull trout ESUs will be approved between now and when a permanent rule might be adopted and become effective (estimated to be July 1, 2000). Since permits are effective for a two-year period, applications approved prior to a new permanent rule taking effect in 2000 would be valid until 2002. Thus, nearly four years from now, some salmonid habitat would still be at risk absent an emergency rule.

The Forest Practices Act (chapter 76.09 RCW) requires protection of public resources. In order to protect these listed salmonids, the habitat associated with spawning, rearing and migration needs to be protected.

Why Current Forest Practices Rules are Inadequate for All Listed Salmonids: Current and newly-approved forest practice operations conducted under the existing rules could cause additional harm to ESA-listed salmonids because continued harvests in riparian areas would decrease shade, bank stability, and large woody debris, and continued road construction in these areas would also impact salmonid habitat. Specific impacts are categorized as follows:

Shade and Stream Temperature. Under the current forest practices rules, shade is required to meet current temperature criteria at sixteen or eighteen degrees centigrade. At the present time, it is likely that shade is not fully provided on Type 3 streams because landowners only have to seek shade as far as the maximum width riparian management zone (RMZ). The maximum width RMZs for Type 3 streams are currently fifty feet on streams greater than five feet wide and twenty-five feet on streams that are less than five feet wide.

An additional factor where current rules are inadequate for meeting temperature requirements involves removal of shade in nonfish-bearing waters which contribute to the temperature of fish-bearing waters downstream. This removal of shade elevates the water temperature which then cumulatively elevates temperatures downstream.

Stream Bank Stability and Forest Roads. Under the current rules, bank stability may be protected. On the westside of the state, the protection only extends to twenty-five feet. On the eastside, the recommended protection is thirty feet. However, if shade is provided (meeting current shade rule) and leave tree requirements are met, additional tree removal that would provide bank stability is also possible.

Roads are covered by the current rules; however, existing information would lead us to believe that standards need to be upgraded and that roads are out of compliance with existing rules as much as half the time as documented in the 1991 Compliance Report prepared by Timber, Fish and Wildlife's Field Implementation Committee. Preliminary findings from an on-going internal audit by the Department of Natural Resources also show that construction of roads in certain areas of the state indicate that the minimum standards are not adequate to protect public resources. Furthermore, greater efforts should be made to reduce road densities or minimize further increases in road densities, depending on the basin.

Large Woody Debris. Under the current rules, LWD is only provided at a minimal level. The number of leave trees required to be retained in the RMZ is not based on the ability to improve both near and long-term continuous LWD recruitment. Input of LWD to stream channels generally occurs within one tree height from the channel edge (FEMAT 1993, McDade et al. 1990). Removal of trees from within this area results in a reduction of LWD recruitment to the stream channel. Furthermore, under current rules, harvest of the larger conifers within the RMZ is allowed, which if retained, would contribute towards the key piece functional sizes of LWD needed in the stream.

Summary. Given the above information, current forest practice rules are deficient, particularly in providing LWD, adequate shade, bank stability, and excessive contributions of sediment from roads and ground disturbance.

Additional Reasons Why Current Rules are Inadequate for Listed Bull Trout: All of the above information applies to bull trout, plus the following:

Shade and Stream Temperature. Current forest practice rules require retention of shade to meet water quality standards of 16 or 18C, depending on the Department of Ecology stream class. Bull trout have temperature requirements which are cooler than the current water quality standards. Removal of available shade can result in stream temperatures exceeding the preference and tolerance levels of bull trout. Currently, it is likely that shade is not fully provided on Type 3 streams because landowners only have to seek shade as far as the maximum width RMZ (fifty feet on streams wider than five feet, and twenty-five feet on streams less than five feet). Furthermore, no shade is required on nonfish-bearing streams which can result in elevated stream temperatures in downstream fish-bearing waters. Protection of groundwater sources and seeps and springs in nonfish-bearing waters is also not included in current forest practice rules.

Though it is agreed upon that spawning and juvenile rearing life stages have the cooler temperature requirement, management should not focus merely on headwater streams and compromise shade and resulting cool water temperatures in lower elevation reaches, which adult bull trout use for foraging and migration. Though adult bull trout can tolerate somewhat higher temperatures, the natural increase in stream temperatures as elevation lowers makes it more difficult to maintain temperature requirements.

4. PROTECTING PUBLIC RESOURCES AND CLASS IV-SPECIAL CLASSIFICATION.

The public has a strong interest in protecting public resources, including water, fish, and wildlife, especially those listed as endangered and threatened species. Immediate action is necessary to ensure that impacts from forest practices in the salmonid listed areas are carefully evaluated while the board is in the process of adopting permanent rules. Without an emergency rule, habitat of these threatened and endangered species could be significantly impacted by forest practices.

The Forest Practices Act requires that forest practices which have the potential for a substantial impact on the environment be classified as Class IV so that they receive additional environmental review under the State Environmental Policy Act (chapter 43.21C RCW). SEPA recognizes the critical importance of restoring and maintaining environmental quality to the public welfare and the importance of full disclosure of adverse environmental impacts caused by agency actions. The Forest Practices Board is obligated under the law to identify those forest practices that have potential for substantial impact on the environment and classify them as Class IV-Special so that additional SEPA review is conducted. If there is the potential for damage to the habitat of a state or federal listed species, then there is potential for substantial impact on the environment. An emergency rule would not necessarily prohibit harvest; it would require additional review to evaluate environmental impacts. This process includes public notice and a public comment period.

As described above, certain forest practices in the salmonid listed areas have the potential for impact on listed salmonids. This impact is substantial because of the number of forest practices in the listed areas and because the current rules are inadequate. Absent permanent rules that adequately prevent these impacts, RCW 76.09.050 and SEPA require the emergency rule change in classification.

5. STATE WATER QUALITY REQUIREMENTS.

The intent of the Forest Practices Act is to meet water quality standards under the Water Pollution Control Act. As indicated by the 2,600 miles of Washington's streams and rivers listed under section 303(d) of the Clean Water Act, water quality standards are not being met. Temperature increases attributed to forestry activities cause 303(d) listings. In 1996, streams with elevated temperatures comprised the largest group on the entire 303(d) list. Temperature limits in the water quality standards are intended to fully protect in-stream beneficial uses by preventing any decrease in salmonid health or reproductive success. This goal is consistent with the state water quality antidegradation regulatory requirements. These requirements demand that the beneficial in-stream uses, such as salmonid habitat, be fully protected. Changes in water quality are not allowed that violate the standards set to fully protect these uses. Further, degradation of water quality, even where it does not cause a violation of the standards, is not allowed unless all known, available, and reasonable best management practices are being used to reduce the affect on water quality; and the activity has been found to be in the overriding public interest.

6. RULE-MAKING FILES.

The Forest Practices Board and the Department of Ecology maintain rule-making files for this emergency rule that have detailed background information supporting these findings. Please contact Judith Holter, DNR, at (360) 902-1412 or Doug Rushton, DOE, at (360) 407-6180 if you would like to inspect these files.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 3, Amended 6, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Immediately.

February 10, 1999

Jennifer M. Belcher

Commissioner of Public Lands

OTS-2254.2


NEW SECTION
WAC 222-10-020
*SEPA policies for certain forest practices within 200 feet of a Type 1 Water.

The following policies shall apply to Class IV-Special forest practices, within the salmonid listed areas map in WAC 222-16-088, involving construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas within 200 feet of Type 1 Waters.

*(1) In order to determine whether forest practices are likely to have a probable significant adverse impact, and therefore require an environmental impact statement, the applicant must submit to the department additional information prepared by a qualified expert on: Whether the proposed activity is within the channel migration zone of the Type 1 Water; whether the proposed activity has the potential for accelerating erosional and depositional processes of the Type 1 Water; whether the proposal will have an impact on salmonid spawning, rearing, or migration habitat; and whether the proposal will adversely impact a threatened or endangered species. (See WAC 222-10-043.) In addition, the report must identify specific mitigation measures designed to reduce the impacts to avoid any probable significant adverse impacts identified above.

*(2) The department will evaluate the proposal in consultation with the department of ecology, the department of fish and wildlife, local government, and affected Indian tribes. If the proposal is likely to cause significant adverse impacts to salmonid spawning, rearing, or migration habitat, accelerate erosional and depositional processes of the Type 1 Water, or cause significant adverse impacts to a threatened or endangered species, then it is likely to have a probable significant adverse impact on the environment. If the department determines, in consultation with the department of fish and wildlife and affected Indian tribes, that the impacts can be mitigated or that the threatened and endangered species is not likely to occur because of a significant long-term passage barrier such as a dam or waterfall in the case of migrating salmonids or determines that certain stream reaches have unsuitable habitat conditions to support bull trout, then the proposal is not likely to have a probable significant adverse impact on the environment.

*(3) If a local permit is required, then the local government is lead agency and the department shall forward the additional information, the environmental checklist, and the forest practices application to the local government for completing SEPA. (See WAC 222-20-040(4).)

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AMENDATORY SECTION(Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-10-040
*Class IV-Special threatened and endangered species SEPA policies.

In addition to the SEPA policies established elsewhere in this chapter, the following policies shall apply to Class IV-Special forest practices involving threatened or endangered species.

*(1) The department shall consult with the department of fish and wildlife, other agencies with expertise, affected landowners, affected Indian tribes, and others with expertise when evaluating the impacts of forest practices.  If the department does not follow the recommendations of the department of fish and wildlife, the department shall set forth in writing a concise explanation of the reasons for its action.

*(2) In order to determine whether forest practices are likely to have a probable significant adverse impact, and therefore require an environmental impact statement, the department shall evaluate whether the forest practices reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of the survival or recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.

*(3) Specific mitigation measures or conditions shall be designed to reduce any probable significant adverse impacts identified in subsection (2) of this section.

*(4) The department shall consider the species-specific policies in WAC 222-10-041 ((and)) northern spotted owls, WAC 222-10-042 marbled murrelets, and WAC 222-10-043 salmonids when reviewing and evaluating SEPA documents and the impacts of forest practices.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  97-24-091, 222-10-040, filed 12/3/97, effective 1/3/98.  Statutory Authority: Chapters 76.09 and 34.05 RCW.  96-12-038 and 96-14-081, 222-10-040, filed 5/31/96 and 7/1/96, effective 7/1/96 and 8/1/96.]


NEW SECTION
WAC 222-10-043
*Salmonids.

The following policies shall apply to Class IV-Special forest practices, within the salmonid listed areas map in WAC 222-16-088, if the forest practices may cause adverse impacts to salmonids.

*(1) In order to determine whether forest practices are likely to have a probable significant adverse impact, and therefore require an environmental impact statement, the applicant must submit to the department additional information prepared by a qualified expert that includes: An evaluation of the channel condition; information on how the proposal will provide for bank stability, sediment and mass wasting attenuation, adequate shade, near and long-term large woody debris recruitment, and protection from windthrow. In addition, the report must identify specific mitigation measures designed to reduce the impacts to avoid any probable significant adverse impacts identified above.

*(2) Roads, skid trails, or yarding corridors may not occupy or disturb more than 10 percent of the soil in the riparian management zone unless the landowner submits mitigation measures that provide equivalent replacement of habitat.

*(3) Harvesting, road construction, aerial applications of pesticides, or site preparation that is likely to cause significant adverse impacts to salmonid spawning, rearing, or migration habitat are likely to have a probable significant adverse impact on the environment except when the department determines, in consultation with the department of fish and wildlife, that the impacts can be mitigated.

*(4) The department shall consult with the department of fish and wildlife, the department of ecology, affected Indian tribes, and other interested parties to determine if the proposal will maintain a fully functioning riparian management zone. To meet this goal, the department will review whether the forest practices reasonably would be expected, directly or indirectly, to: Increase protection from sediment and mass wasting impacts; maintain bank stability; maintain shade; maintain near or long-term large woody debris that is key-piece size or larger and indexed to the size of the channel; and, protect riparian functions from windthrow in site-specific circumstances. If the above functions are not adequately provided, then the forest practice is likely to have a probable significant adverse impact on the environment. If the department determines, in consultation with the department of fish and wildlife and affected Indian tribes, that the impacts can be mitigated or that the threatened and endangered species is not likely to occur because of a significant long-term passage barrier such as a dam or waterfall in the case of migrating salmonids or determines that certain stream reaches have unsuitable habitat conditions to support bull trout, then the proposal is not likely to have a probable significant adverse impact on the environment.

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OTS-2449.2


AMENDATORY SECTION(Amending WSR 98-07-047, filed 3/13/98, effective 5/1/98)

WAC 222-16-010
General definitions.*

Unless otherwise required by context, as used in these regulations:

"Act" means the Forest Practices Act, chapter 76.09 RCW.

"Affected Indian tribe" means any federally recognized Indian tribe that requests in writing from the department information on forest practices applications and notification filed on specified areas.

"Appeals board" means the forest practices appeals board established in the act.

"Area of resource sensitivity" means areas identified in accordance with WAC 222-22-050 (2)(d) or 222-22-060(2).

"Board" means the forest practices board established by the act.

"Bog" means wetlands which have the following characteristics: Hydric organic soils (peat and/or muck) typically 16 inches or more in depth (except over bedrock or hardpan); and vegetation such as sphagnum moss, labrador tea, bog laurel, bog rosemary, sundews, and sedges; bogs may have an overstory of spruce, western Hemlock, lodgepole pine, cedar, whitepine, crabapple, or aspen, and may be associated with open water.  This includes nutrient-poor fens.  See the Forest Practices Board Manual.

"Borrow pit" shall mean an excavation site outside the limits of construction to provide material necessary to that construction, such as fill material for the embankments.

"Chemicals" means substances applied to forest lands or timber including pesticides, fertilizers, and other forest chemicals.

"Clearcut" means a harvest method in which the entire stand of trees is removed in one timber harvesting operation.  Except as provided in WAC 222-30-110, an area remains clearcut until:

It meets the minimum stocking requirements under WAC 222-34-010(2) or 222-34-020(2); and

The largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.

"Columbia River Gorge National Scenic Area or CRGNSA" means the area established pursuant to the Columbia River Gorge National Scenic Area Act, 16 U.S.C.  544b(a).

"CRGNSA special management area" means the areas designated in the Columbia River Gorge National Scenic Area Act, 16 U.S.C.  544b(b) or revised pursuant to 16 U.S.C.  544b(c).  For purposes of this rule, the special management area shall not include any parcels excluded by 16 U.S.C.  544f(o).

"CRGNSA special management area guidelines" means the guidelines and land use designations for forest practices developed pursuant to 16 U.S.C.  544f contained in the CRGNSA management plan developed pursuant to 15 U.S.C.  544d.

"Commercial tree species" means any species which is capable of producing a merchantable stand of timber on the particular site, or which is being grown as part of a Christmas tree or ornamental tree-growing operation.

"Completion of harvest" means the latest of:

Completion of removal of timber from the portions of forest lands harvested in the smallest logical unit that will not be disturbed by continued logging or an approved slash disposal plan for adjacent areas; or

Scheduled completion of any slash disposal operations where the department and the applicant agree within 6 months of completion of yarding that slash disposal is necessary or desirable to facilitate reforestation and agree to a time schedule for such slash disposal; or

Scheduled completion of any site preparation or rehabilitation of adjoining lands approved at the time of approval of the application or receipt of a notification: Provided, That delay of reforestation under this paragraph is permitted only to the extent reforestation would prevent or unreasonably hinder such site preparation or rehabilitation of adjoining lands.

"Constructed wetlands" means those wetlands voluntarily developed by the landowner.  Constructed wetlands do not include wetlands created, restored, or enhanced as part of a mitigation procedure or wetlands inadvertently created as a result of current or past practices including, but not limited to: Road construction, landing construction, railroad construction, or surface mining.

"Contamination" means the introducing into the atmosphere, soil, or water, sufficient quantities of substances as may be injurious to public health, safety or welfare, or to domestic, commercial, industrial, agriculture or recreational uses, or to livestock, wildlife, fish or other aquatic life.

"Conversion option harvest plan" means a voluntary plan developed by the landowner and approved by the local government entity indicating the limits of harvest areas, road locations, and open space.

"Conversion to a use other than commercial timber operation" shall mean a bona fide conversion to an active use which is incompatible with timber growing.

"Cooperative habitat enhancement agreement (CHEA)" see WAC 222-16-105.

"Critical habitat (federal)" means the habitat of any threatened or endangered species designated as critical habitat by the United States Secretary of the Interior under Sections 3 (5)(A) and 4 (a)(3) of the Federal Endangered Species Act.

"Critical nesting season" means for marbled murrelets - April 1 to August 31.

"Critical wildlife habitat (state)" means those habitats designated by the board in accordance with WAC 222-16-080.

"Cultural resources" means archaeological and historic sites and artifacts and traditional religious, ceremonial and social uses and activities of affected Indian tribes.

"Cumulative effects" means the changes to the environment caused by the interaction of natural ecosystem processes with the effects of two or more forest practices.

"Daily peak activity" means for marbled murrelets - one hour before official sunrise to two hours after official sunrise and one hour before official sunset to one hour after official sunset.

"Debris" means woody vegetative residue less than 3 cubic feet in size resulting from forest practice activities which would reasonably be expected to cause significant damage to a public resource.

"Demographic support" means providing sufficient suitable spotted owl habitat within the SOSEA to maintain the viability of northern spotted owl sites identified as necessary to meet the SOSEA goals.

"Department" means the department of natural resources.

"Dispersal habitat" see WAC 222-16-085(2).

"Dispersal support" means providing sufficient dispersal habitat for the interchange of northern spotted owls within or across the SOSEA, as necessary to meet SOSEA goals.  Dispersal support is provided by a landscape consisting of stands of dispersal habitat interspersed with areas of higher quality habitat, such as suitable spotted owl habitat found within RMZs, WMZs or other required and voluntary leave areas.

"Eastern Washington" means the lands of the state lying east of an administrative line which approximates the change from the Western Washington timber types to the Eastern Washington timber types described as follows:

Beginning at the International Border and Okanogan National Forest boundary at the N1/4 corner Section 6, T. 40N, R. 24E., W.M., south and west along the Pasayten Wilderness boundary to the west line of Section 30, T. 37N, R. 19E.,

Thence south on range line between R. 18E. and R. 19E., to the Lake Chelan-Sawtooth Wilderness at Section 31, T. 35N, R. 19E.,

Thence south and east along the eastern wilderness boundary of Lake Chelan-Sawtooth Wilderness to the west line of Section 18, T. 31N, R. 19E. on the north shore of Lake Chelan,

Thence south on the range line between R. 18E. and R. 19E. to the SE corner of T. 28N, R. 18E.,

Thence west on the township line between T. 27N, and T. 28N to the NW corner of T. 27N, R. 17E.,

Thence south on range line between R. 16E. and R. 17E. to the Alpine Lakes Wilderness at Section 31, T. 26N, R. 17E.,

Thence south along the eastern wilderness boundary to the west line of Section 6, T. 22N, R. 17E.,

Thence south on range line between R. 16E. and R. 17E. to the SE corner of T. 22N, R. 16E.,

Thence west along township line between T. 21N, and T. 22N to the NW corner of T. 21N, R. 15E.,

Thence south along range line between R. 14E. and R. 15E. to SW corner of T. 20N, R. 15E.,

Thence east along township line between T. 19N, and T. 20N to the SW corner of T. 20N, R. 16E.,

Thence south along range line between R. 15E. and R. 16E. to the SW corner of T. 18N, R. 16E.,

Thence west along township line between T. 17N, and T. 18N to the SE corner of T. 18N, R. 14E.,

Thence south along range line between T. 14E. and R. 15E. to the SW corner of T. 14N, R. 15E.,

Thence south and west along Wenatchee National Forest Boundary to the NW corner of T. 12N, R. 14E.,

Thence south along range line between R. 13E. and R. 14E. to SE corner of T. 10N, R. 13E.,

Thence west along township line between T. 9N, and T. 10N to the NW corner of T. 9N, R. 12E.,

Thence south along range line between R. 11E. and R. 12E. to SE corner of T. 8N, R. 11E.,

Thence west along township line between T. 7N, and T. 8N to the Gifford Pinchot National Forest Boundary,

Thence south along Forest Boundary to SE corner of Section 33, T. 7N, R. 11E.,

Thence west along township line between T. 6N, and T. 7N to SE corner of T. 7N, R. 9E.,

Thence south along Skamania-Klickitat County line to Oregon-Washington state line.

"End hauling" means the removal and transportation of excavated material, pit or quarry overburden, or landing or road cut material from the excavation site to a deposit site not adjacent to the point of removal.

"Erodible soils" means those soils exposed or displaced by a forest practice operation, that would be readily moved by water.

"Even-aged harvest methods" means the following harvest methods:

Clearcuts;

Seed tree harvests in which twenty or fewer trees per acre remain after harvest;

Shelterwood regeneration harvests in which twenty or fewer trees per acre remain after harvest;

Group or strip shelterwood harvests creating openings wider than two tree heights, based on dominant trees;

Shelterwood removal harvests which leave fewer than one hundred fifty trees per acre which are at least five years old or four feet in average height;

Partial cutting in which fewer than fifty trees per acre remain after harvest;

Overstory removal when more than five thousand board feet per acre is removed and fewer than fifty trees per acre at least ten feet in height remain after harvest; and

Other harvesting methods designed to manage for multiple age classes in which six or fewer trees per acre remain after harvest.

Except as provided above for shelterwood removal harvests and overstory removal, trees counted as remaining after harvest shall be at least ten inches in diameter at breast height and have at least the top one-third of the stem supporting green, live crowns.  Except as provided in WAC 222-30-110, an area remains harvested by even-aged methods until it meets the minimum stocking requirements under WAC 222-30-010(2) or 222-34-020(2) and the largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.

"Fen" means wetlands which have the following characteristics: Peat soils 16 inches or more in depth (except over bedrock); and vegetation such as certain sedges, hardstem bulrush and cattails; fens may have an overstory of spruce and may be associated with open water.

"Fertilizers" means any substance or any combination or mixture of substances used principally as a source of plant food or soil amendment.

"Fill" means the placement of earth material or aggregate for road or landing construction or other similar activities.  Fill does not include the growing or harvesting of timber including, but not limited to, slash burning, site preparation, reforestation, precommercial thinning, intermediate or final harvesting, salvage of trees, brush control, or fertilization.

"Flood level - 50 year." For purposes of field interpretation of these regulations, the 50-year flood level shall be considered to refer to a vertical elevation measured from the ordinary high-water mark which is 1.25 times the vertical distance between the average stream bed and the ordinary high-water mark, and in horizontal extent shall not exceed 2 times the channel width measured on either side from the ordinary high-water mark, unless a different area is specified by the department based on identifiable topographic or vegetative features or based on an engineering computation of flood magnitude that has a 2 percent chance of occurring in any given year.  The 50-year flood level shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or under license from the federal government, the state, or a political subdivision of the state.

"Forest land" means all land which is capable of supporting a merchantable stand of timber and is not being actively used for a use which is incompatible with timber growing.

"Forest land owner" shall mean any person in actual control of forest land, whether such control is based either on legal or equitable title, or on any other interest entitling the holder to sell or otherwise dispose of any or all of the timber on such land in any manner: Provided, That any lessee or other person in possession of forest land without legal or equitable title to such land shall be excluded from the definition of "forest land owner" unless such lessee or other person has the right to sell or otherwise dispose of any or all of the timber located on such forest land.

"Forest practice" means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:

Road and trail construction;

Harvesting, final and intermediate;

Precommercial thinning;

Reforestation;

Fertilization;

Prevention and suppression of diseases and insects;

Salvage of trees; and

Brush control.

"Forest practice" shall not include: Forest species seed orchard operations and intensive forest nursery operations; or preparatory work such as tree marking, surveying and road flagging; or removal or harvest of incidental vegetation from forest lands such as berries, ferns, greenery, mistletoe, herbs, mushrooms, and other products which cannot normally be expected to result in damage to forest soils, timber or public resources.

"Forest trees" excludes trees cultivated by agricultural methods in growing cycles shorter than ten years: Provided, That Christmas trees are forest trees and: Provided further, That this exclusion applies only to trees planted on land that was not in forest use immediately before the trees were planted and before the land was prepared for planting the trees.

"Green recruitment trees" means those trees left after harvest for the purpose of becoming future wildlife reserve trees under WAC 222-30-020(11).

"Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any tree, bush, weed or algae and other aquatic weeds.

"Historic site" includes:

Sites, areas and structures or other evidence of human activities illustrative of the origins, evolution and development of the nation, state or locality; or

Places associated with a personality important in history; or

Places where significant historical events are known to have occurred even though no physical evidence of the event remains.

"Identified watershed processes" means the following components of natural ecological processes that may in some instances be altered by forest practices in a watershed:

Mass wasting;

Surface and road erosion;

Seasonal flows including hydrologic peak and low flows and annual yields (volume and timing);

Large organic debris;

Shading; and

Stream bank and bed stability.

"Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect, other arthropods or mollusk pests.

"Interdisciplinary team" (ID Team) means a group of varying size comprised of individuals having specialized expertise, assembled by the department to respond to technical questions associated with a proposed forest practice activity.

"Islands" means any island surrounded by salt water in Kitsap, Mason, Jefferson, Pierce, King, Snohomish, Skagit, Whatcom, Island, or San Juan counties.

"Limits of construction" means the area occupied by the completed roadway or landing, including the cut bank, fill slope, and the area cleared for the purpose of constructing the roadway or landing.

"Load bearing portion" means that part of the road, landing, etc., which is supportive soil, earth, rock or other material directly below the working surface and only the associated earth structure necessary for support.

"Local government entity" means the governments of counties and the governments of cities and towns as defined in chapter 35.01 RCW.

"Low impact harvest" means use of any logging equipment, methods, or systems that minimize compaction or disturbance of soils and vegetation during the yarding process.  The department shall determine such equipment, methods or systems in consultation with the department of ecology.

"Marbled murrelet detection area" means an area of land associated with a visual or audible detection of a marbled murrelet, made by a qualified surveyor which is documented and recorded in the department of fish and wildlife data base.  The marbled murrelet detection area shall be comprised of the section of land in which the marbled murrelet detection was made and the eight sections of land immediately adjacent to that section.

"Marbled murrelet nesting platform" means any horizontal tree structure such as a limb, an area where a limb branches, a surface created by multiple leaders, a deformity, or a debris/moss platform or stick nest equal to or greater than 7 inches in diameter including associated moss if present, that is 50 feet or more above the ground in trees 32 inches dbh and greater (generally over 90 years of age) and is capable of supporting nesting by marbled murrelets.

"Median home range circle" means a circle, with a specified radius, centered on a spotted owl site center.  The radius for the median home range circle in the Hoh-Clearwater/Coastal Link SOSEA is 2.7 miles; for all other SOSEAs the radius is 1.8 miles.

"Merchantable stand of timber" means a stand of trees that will yield logs and/or fiber:

Suitable in size and quality for the production of lumber, plywood, pulp or other forest products;

Of sufficient value at least to cover all the costs of harvest and transportation to available markets.

"Northern spotted owl site center" means the location of status 1, 2 or 3 northern spotted owls based on the following definitions:


Status 1:Pair or reproductive - a male and female heard and/or observed in close proximity to each other on the same visit, a female detected on a nest, or one or both adults observed with young.
Status 2:Two birds, pair status unknown - the presence or response of two birds of opposite sex where pair status cannot be determined and where at least one member meets the resident territorial single requirements.
Status 3:Resident territorial single - the presence or response of a single owl within the same general area on three or more occasions within a breeding season with no response by an owl of the opposite sex after a complete survey; or three or more responses over several years (i.e., two responses in year one and one response in year two, for the same general area).

In determining the existence, location, and status of northern spotted owl site centers, the department shall consult with the department of fish and wildlife and use only those sites documented in substantial compliance with guidelines or protocols and quality control methods established by and available from the department of fish and wildlife.

"Notice to comply" means a notice issued by the department pursuant to RCW 76.09.090 of the act and may require initiation and/or completion of action necessary to prevent, correct and/or compensate for material damage to public resources which resulted from forest practices.

"Occupied marbled murrelet site" means:

(1) A contiguous area of suitable marbled murrelet habitat where at least one of the following marbled murrelet behaviors or conditions occur:

(a) A nest is located; or

(b) Downy chicks or eggs or egg shells are found; or

(c) Marbled murrelets are detected flying below, through, into or out of the forest canopy; or

(d) Birds calling from a stationary location within the area; or

(e) Birds circling above a timber stand within one tree height of the top of the canopy; or

(2) A contiguous forested area, which does not meet the definition of suitable marbled murrelet habitat, in which any of the behaviors or conditions listed above has been documented by the department of fish and wildlife and which is distinguishable from the adjacent forest based on vegetative characteristics important to nesting marbled murrelets.

(3) For sites defined in (1) above, the outer perimeter of the occupied site shall be presumed to be the closer, measured from the point where the observed behaviors or conditions listed in (1) above occurred, of the following:

(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or

(b) The beginning of any gap greater than 300 feet wide lacking one or more of the vegetative characteristics listed under "suitable marbled murrelet habitat"; or

(c) The beginning of any narrow area of "suitable marbled murrelet habitat" less than 300 feet in width and more than 300 feet in length.

(4) For sites defined under (2) above, the outer perimeter of the occupied site shall be presumed to be the closer, measured from the point where the observed behaviors or conditions listed in (1) above occurred, of the following:

(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or

(b) The beginning of any gap greater than 300 feet wide lacking one or more of the distinguishing vegetative characteristics important to murrelets; or

(c) The beginning of any narrow area of suitable marbled murrelet habitat, comparable to the area where the observed behaviors or conditions listed in (1) above occurred, less than 300 feet in width and more than 300 feet in length.

(5) In determining the existence, location and status of occupied marbled murrelet sites, the department shall consult with the department of fish and wildlife and use only those sites documented in substantial compliance with guidelines or protocols and quality control methods established by and available from the department of fish and wildlife.

"Old forest habitat" see WAC 222-16-085 (1)(a).

"Operator" shall mean any person engaging in forest practices except an employee with wages as his/her sole compensation.

"Ordinary high-water mark" means the mark on the shores of all waters, which will be found by examining the beds and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation: Provided, That in any area where the ordinary high-water mark cannot be found, the ordinary high-water mark adjoining saltwater shall be the line of mean high tide and the ordinary high-water mark adjoining freshwater shall be the line of mean high-water.

"Other forest chemicals" means fire retardants when used to control burning (other than water), nontoxic repellents, oil, dust-control agents (other than water), salt, and other chemicals used in forest management, except pesticides and fertilizers, that may present hazards to the environment.

"Park" means any park included on the parks register maintained by the department pursuant to WAC 222-20-100(2).  Developed park recreation area means any park area developed for high density outdoor recreation use.

"Partial cutting" means the removal of a portion of the merchantable volume in a stand of timber so as to leave an uneven-aged stand of well-distributed residual, healthy trees that will reasonably utilize the productivity of the soil.  Partial cutting does not include seedtree or shelterwood or other types of regeneration cutting.

"Pesticide" means any insecticide, herbicide, fungicide, or rodenticide but does not include nontoxic repellents or other forest chemicals.

"Plantable area" is an area capable of supporting a commercial stand of timber excluding lands devoted to permanent roads, utility rights-of-way, that portion of riparian management zones where scarification is not permitted, and any other area devoted to a use incompatible with commercial timber growing.

"Power equipment" means all machinery operated with fuel burning or electrical motors, including heavy machinery, chain saws, portable generators, pumps, and powered backpack devices.

"Public resources" means water, fish, and wildlife and in addition shall mean capital improvements of the state or its political subdivisions.

"Qualified expert" means a person qualified for level 2 certification in the watershed analysis process, plus having at least 3 additional years of experience in the evaluation of relevant problems in forested lands.

"Qualified surveyor" means an individual who has successfully completed the marbled murrelet field training course offered by the department of fish and wildlife or its equivalent.

"Rehabilitation" means the act of renewing, or making usable and reforesting forest land which was poorly stocked or previously nonstocked with commercial species.

"Relief culvert" means a structure to relieve surface runoff from roadside ditches to prevent excessive buildup in water volume and velocity.

"Resource characteristics" means the following specific measurable characteristics of fish, water, and capital improvements of the state or its political subdivisions:

For fish and water:

Physical fish habitat, including temperature and turbidity;

Turbidity in hatchery water supplies; and

Turbidity and volume for areas of water supply.

For capital improvements of the state or its political subdivisions:

Physical or structural integrity.

If the methodology is developed and added to the manual to analyze the cumulative effects of forest practices on other characteristics of fish, water, and capital improvements of the state or its subdivisions, the board shall amend this list to include these characteristics.

"Riparian management zone" means a specified area alongside Type 1, 2 and 3 Waters where specific measures are taken to protect water quality and fish and wildlife habitat.

"Rodenticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate rodents or any other vertebrate animal which the director of the state department of agriculture may declare by regulation to be a pest.

*"Salmonid listed areas" means the geographic areas as mapped in WAC 222-16-088. Detailed maps are available from the department at its regional offices.

"Salvage" means the removal of snags, down logs, windthrow, or dead and dying material.

"Scarification" means loosening the topsoil and/or disrupting the forest floor in preparation for regeneration.

"Shorelines of the state" shall have the same meaning as in RCW 90.58.030 (Shoreline Management Act).

"Side casting" means the act of moving excavated material to the side and depositing such material within the limits of construction or dumping over the side and outside the limits of construction.

"Site preparation" means those activities associated with the removal of slash in preparing a site for planting and shall include scarification and/or slash burning.

"Skid trail" means a route used by tracked or wheeled skidders to move logs to a landing or road.

"Slash" means pieces of woody material containing more than 3 cubic feet resulting from forest practice activities.

"SOSEA goals" means the goals specified for a spotted owl special emphasis area as identified on the SOSEA maps (see WAC 222-16-086).  SOSEA goals provide for demographic and/or dispersal support as necessary to complement the northern spotted owl protection strategies on federal land within or adjacent to the SOSEA.

"Spoil" means excess material removed as overburden or generated during road or landing construction which is not used within limits of construction.

"Spotted owl dispersal habitat" see WAC 222-16-085(2).

"Spotted owl special emphasis areas (SOSEA)" means the geographic areas as mapped in WAC 222-16-086.  Detailed maps of the SOSEAs indicating the boundaries and goals are available from the department at its regional offices.

"Stop work order" means the "stop work order" defined in RCW 76.09.080 of the act and may be issued by the department to stop violations of the forest practices chapter or to prevent damage and/or to correct and/or compensate for damages to public resources resulting from forest practices.

"Sub-mature habitat" see WAC 222-16-085 (1)(b).

"Suitable marbled murrelet habitat" means a contiguous forested area containing trees capable of providing nesting opportunities:

(1) With all of the following indicators unless the department, in consultation with the department of fish and wildlife, has determined that the habitat is not likely to be occupied by marbled murrelets:

(a) Within 50 miles of marine waters;

(b) At least 40% of the dominant and codominant trees are Douglas-fir, western hemlock, western red cedar or sitka spruce;

(c) Two or more nesting platforms per acre;

(d) At least 7 acres in size, including the contiguous forested area within 300 feet of nesting platforms, with similar forest stand characteristics (age, species composition, forest structure) to the forested area in which the nesting platforms occur.

"Suitable spotted owl habitat" see WAC 222-16-085(1).

"Threatened or endangered species" means all species of wildlife listed as "threatened" or "endangered" by the United States Secretary of the Interior, and all species of wildlife designated as "threatened" or "endangered" by the Washington fish and wildlife commission.

"Timber" shall mean forest trees, standing or down, of a commercial species, including Christmas trees.

"Water bar" means a diversion ditch and/or hump in a trail or road for the purpose of carrying surface water runoff into the vegetation duff, ditch, or other dispersion area so that it does not gain the volume and velocity which causes soil movement and erosion.

"Watershed administrative unit (WAU)" means an area shown on the map specified in WAC 222-22-020(1).

"Watershed analysis" means, for a given WAU, the assessment completed under WAC 222-22-050 or 222-22-060 together with the prescriptions selected under WAC 222-22-070 and shall include assessments completed under WAC 222-22-050 where there are no areas of resource sensitivity.

"Weed" is any plant which tends to overgrow or choke out more desirable vegetation.

"Western Washington" means the lands of the state lying west of the administrative line described in the definition of Eastern Washington.

"Wetland" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, such as swamps, bogs, fens, and similar areas.  This includes wetlands created, restored, or enhanced as part of a mitigation procedure.  This does not include constructed wetlands or the following surface waters of the state intentionally constructed from wetland sites: Irrigation and drainage ditches, grass lined swales, canals, agricultural detention facilities, farm ponds, and landscape amenities.

"Wetland functions" include the protection of water quality and quantity, providing fish and wildlife habitat, and the production of timber.

"Wetland management zone" means a specified area adjacent to Type A and B Wetlands where specific measures are taken to protect the wetland functions.

"Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state.  The term "wildlife" includes, but is not limited to, any mammal, bird, reptile, amphibian, fish, or invertebrate, at any stage of development.  The term "wildlife" does not include feral domestic mammals or the family Muridae of the order Rodentia (old world rats and mice).

"Wildlife reserve trees" means those defective, dead, damaged, or dying trees which provide or have the potential to provide habitat for those wildlife species dependent on standing trees.  Wildlife reserve trees are categorized as follows:

Type 1 wildlife reserve trees are defective or deformed live trees that have observably sound tops, limbs, trunks, and roots.  They may have part of the top broken out or have evidence of other severe defects that include: "Cat face," animal chewing, old logging wounds, weather injury, insect attack, or lightning strike.  Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 1 wildlife reserve trees.  These trees must be stable and pose the least hazard for workers.

Type 2 wildlife reserve trees are dead Type 1 trees with sound tops, limbs, trunks, and roots.

Type 3 wildlife reserve trees are live or dead trees with unstable tops or upper portions.  Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 3 wildlife reserve trees.  Although the roots and main portion of the trunk are sound, these reserve trees pose high hazard because of the defect in live or dead wood higher up in the tree.

Type 4 wildlife reserve trees are live or dead trees with unstable trunks or roots, with or without bark.  This includes "soft snags" as well as live trees with unstable roots caused by root rot or fire.  These trees are unstable and pose a high hazard to workers.

"Windthrow" means a natural process by which trees are uprooted or sustain severe trunk damage by the wind.

"Young forest marginal habitat" see WAC 222-16-085 (1)(b).

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  98-07-047, 222-16-010, filed 3/13/98, effective 5/1/98; 97-24-091, 222-16-010, filed 12/3/97, effective 1/3/98; 97-15-105, 222-16-010, filed 7/21/97, effective 8/21/97.  Statutory Authority: Chapters 76.09 and 34.05 RCW.  96-12-038, 222-16-010, filed 5/31/96, effective 7/1/96.  Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  94-17-033, 222-16-010, filed 8/10/94, effective 8/13/94; 93-12-001, 222-16-010, filed 5/19/93, effective 6/19/93.  Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW.  92-15-011, 222-16-010, filed 7/2/92, effective 8/2/92.  Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350.  92-03-028, 222-16-010, filed 1/8/92, effective 2/8/92; 91-23-052, 222-16-010, filed 11/15/91, effective 12/16/91.  Statutory Authority: RCW 76.09.040.  88-19-112 (Order 551, Resolution No. 88-1), 222-16-010, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), 222-16-010, filed 11/16/87, effective 1/1/88.  Statutory Authority: RCW 76.09.040 and 76.09.050.  82-16-077 (Resolution No. 82-1), 222-16-010, filed 8/3/82, effective 10/1/82; Order 263, 222-16-010, filed 6/16/76.]


AMENDATORY SECTION(Amending WSR 98-07-047, filed 3/13/98, effective 5/1/98)

WAC 222-16-050
Classes of forest practices.

There are 4 classes of forest practices created by the act.   All forest practices (including those in Classes I and II) must be conducted in accordance with the forest practices regulations.

(1) "Class IV - special." Application to conduct forest practices involving the following circumstances requires an environmental checklist in compliance with the State Environmental Policy Act (SEPA), and SEPA guidelines, as they have been determined to have potential for a substantial impact on the environment.  It may be determined that additional information or a detailed environmental statement is required before these forest practices may be conducted.

*(a) Aerial application of pesticides in a manner identified as having the potential for a substantial impact on the environment under WAC 222-16-070 or ground application of a pesticide within a Type A or B wetland.

(b) Specific forest practices listed in WAC 222-16-080 on lands designated as:

(i) Critical wildlife habitat (state) of threatened or endangered species; or

(ii) Critical habitat (federal) of threatened or endangered species except those excluded by the board under WAC 222-16-080(3).

(c) Harvesting, road construction, aerial application of pesticides and site preparation on all lands within the boundaries of any national park, state park, or any park of a local governmental entity, except harvest of less than 5 MBF within any developed park recreation area and park managed salvage of merchantable forest products.

*(d) Construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas on slide prone areas as defined in WAC 222-24-020(6) and field verified by the department, in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC, when such slide prone areas occur on an uninterrupted slope above water typed pursuant to WAC 222-16-030, Type A or Type B Wetland, or capital improvement of the state or its political subdivisions where there is potential for a substantial debris flow or mass failure to cause significant impact to public resources.

*(e) Timber harvest in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC, on slide prone areas, field verified by the department, where soils, geologic structure, and local hydrology indicate that canopy removal has the potential for increasing slope instability, when such areas occur on an uninterrupted slope above any water typed pursuant to WAC 222-16-030, Type A or Type B Wetland, or a capital improvement of the state or its political subdivisions where there is a potential for a substantial debris flow or mass failure to cause significant impact to public resources.

(f) Timber harvest, in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC, construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas on snow avalanche slopes within those areas designated by the department, in consultation with department of transportation, as high avalanche hazard.

(g) Timber harvest, construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas on archaeological or historic sites registered with the Washington state office of archaeology and historic preservation, or on sites containing evidence of Native American cairns, graves, or glyptic records, as provided for in chapters 27.44 and 27.53 RCW.  The department shall consult with affected Indian tribes in identifying such sites.

*(h) Forest practices subject to a watershed analysis conducted under chapter 222-22 WAC in an area of resource sensitivity identified in that analysis which deviates from the prescriptions (which may include an alternate plan) in the watershed analysis.

*(i) Filling or draining of more than 0.5 acre of a wetland.

*(j) Construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas within 200 feet of a Type 1 Water within the areas on the salmonid listed map in WAC 222-16-088. Road construction means any new road construction, reconstruction, or road maintenance activity that is not a Class I forest practice.

(2) "Class IV - general." Applications involving the following circumstances are "Class IV - general" forest practices unless they are listed in "Class IV - special." Upon receipt of an application, the department will determine the lead agency for purposes of compliance with the State Environmental Policy Act pursuant to WAC 197-11-924 and 197-11-938(4) and RCW 43.21C.037(2).  Such applications are subject to a 30-day period for approval unless the lead agency determines a detailed statement under RCW 43.21C.030 (2)(c) is required.  Upon receipt, if the department determines the application is for a proposal that will require a license from a county/city acting under the powers enumerated in RCW 76.09.240, the department shall notify the applicable county/city under WAC 197-11-924 that the department has determined according to WAC 197-11-938(4) that the county/city is the lead agency for purposes of compliance with State Environmental Policy Act.

(a) Forest practices (other than those in Class I) on lands platted after January 1, 1960, or on lands being converted to another use.

(b) Forest practices which would otherwise be Class III, but which are taking place on lands which are not to be reforested because of likelihood of future conversion to urban development.  (See WAC 222-16-060 and 222-34-050.)

(3) "Class I." Those operations that have been determined to have no direct potential for damaging a public resource are Class I forest practices.  When the conditions listed in "Class IV - Special" are not present, these operations may be commenced without notification or application.

(a) Culture and harvest of Christmas trees and seedlings.

*(b) Road maintenance except: (i) Replacement of bridges and culverts across Type 1, 2, 3 or flowing Type 4 Waters; or (ii) movement of material that has a direct potential for entering Type 1, 2, 3 or flowing Type 4 Waters or Type A or B Wetlands.

*(c) Construction of landings less than 1 acre in size, if not within a shoreline area of a Type 1 Water, the riparian management zone of a Type 2 or 3 Water, the ordinary high-water mark of a Type 4 Water, a wetland management zone, a wetland, or the CRGNSA special management area.

*(d) Construction of less than 600 feet of road on a sideslope of 40 percent or less if the limits of construction are not within the shoreline area of a Type 1 Water, the riparian management zone of a Type 2 or Type 3 Water, the ordinary high-water mark of a Type 4 Water, a wetland management zone, a wetland, or the CRGNSA special management area.

*(e) Installation or removal of a portable water crossing structure where such installation does not take place within the shoreline area of a Type 1 Water and does not involve disturbance of the beds or banks of any waters.

*(f) Initial installation and replacement of relief culverts and other drainage control facilities not requiring a hydraulic permit.

(g) Rocking an existing road.

(h) Loading and hauling timber from landings or decks.

(i) Precommercial thinning and pruning, if not within the CRGNSA special management area.

(j) Tree planting and seeding.

(k) Cutting and/or removal of less than 5,000 board feet of timber (including live, dead and down material) for personal use (i.e., firewood, fence posts, etc.) in any 12-month period, if not within the CRGNSA special management area.

(l) Emergency fire control and suppression.

(m) Slash burning pursuant to a burning permit (RCW 76.04.205).

*(n) Other slash control and site preparation not involving either off-road use of tractors on slopes exceeding 40 percent or off-road use of tractors within the shorelines of a Type 1 Water, the riparian management zone of any Type 2 or 3 Water, or the ordinary high-water mark of a Type 4 Water, a wetland management zone, a wetland, or the CRGNSA special management area.

*(o) Ground application of chemicals, if not within the CRGNSA special management area.  (See WAC 222-38-020 and 222-38-030.)

*(p) Aerial application of chemicals (except insecticides), outside of the CRGNSA special management area when applied to not more than 40 contiguous acres if the application is part of a combined or cooperative project with another landowner and where the application does not take place within 100 feet of lands used for farming, or within 200 feet of a residence, unless such farmland or residence is owned by the forest landowner.  Provisions of chapter 222-38 WAC shall apply.

(q) Forestry research studies and evaluation tests by an established research organization.

(r) Any of the following if none of the operation or limits of construction takes place within the shoreline area of a Type 1 Water or the riparian management zone of a Type 2 or 3 Water, the ordinary high-water mark of a Type 4 Water or flowing Type 5 Water, or within the CRGNSA special management area and the operation does not involve off-road use of tractor or wheeled skidding systems on a sideslope of greater than 40 percent:

(i) Any forest practices within the boundaries of existing golf courses.

(ii) Any forest practices within the boundaries of existing cemeteries which are approved by the cemetery board.

(iii) Any forest practices involving a single landowner where contiguous ownership is less than two acres in size.

(s) Removal of beaver structures from culverts on active and inactive roads.  A hydraulics project approval from the Washington department of fish and wildlife may be required.

(4) "Class II." Certain forest practices have been determined to have a less than ordinary potential to damage a public resource and may be conducted as Class II forest practices: Provided, That no forest practice enumerated below may be conducted as a Class II forest practice if the operation requires a hydraulic project approval (RCW 75.20.100) or is within a "shorelines of the state," or involves a bond in lieu of landowners signature (other than renewals).  Such forest practices require an application.  No forest practice enumerated below may be conducted as a "Class II" forest practice if it takes place on lands platted after January 1, 1960, or on lands being converted to another use.  Such forest practices require a Class IV application.  Class II forest practices are the following:

(a) Renewal of a prior Class II notification where no change in the nature and extent of the forest practices is required under rules effective at the time of renewal.

(b) Renewal of a previously approved Class III or IV forest practice application where:

(i) No modification of the uncompleted operation is proposed;

(ii) No notices to comply, stop work orders or other enforcement actions are outstanding with respect to the prior application; and

(iii) No change in the nature and extent of the forest practice is required under rules effective at the time of renewal.

*(c) Any of the following if none of the operation or limits of construction takes place within the riparian management zone of a Type 2 or 3 Water, within the ordinary high-water mark of a Type 4 Water, within a wetland management zone, within a wetland, or within the CRGNSA special management area:

(i) Construction of advance fire trails.

(ii) Opening a new pit of, or extending an existing pit by, less than 1 acre.

*(d) Any of the following if none of the operation or limits of construction takes place within the riparian management zone of a Type 2 or 3 Water, within the ordinary high-water mark of a Type 4 Water, within a wetland management zone or within a wetland; and if none of the operations involve off-road use of tractor or wheeled skidding systems on a sideslope of greater than 40 percent:

Salvage of logging residue.

*(e) Any of the following if none of the operation or limits of construction takes place within the riparian management zone of a Type 2 or 3 Water, within the ordinary high-water mark of a Type 4 Water, within a wetland management zone, within a wetland, or within the CRGNSA special management area, and if none of the operations involve off-road use of tractor or wheeled skidding systems on a sideslope of greater than 40 percent, and if none of the operations are located on lands with a likelihood of future conversion (see WAC 222-16-060):

(i) West of the Cascade summit, partial cutting of 40 percent or less of the live timber volume.

(ii) East of the Cascade summit, partial cutting of 5,000 board feet per acre or less.

(iii) Salvage of dead, down, or dying timber if less than 40 percent of the total timber volume is removed in any 12-month period.

(iv) Any harvest on less than 40 acres.

(v) Construction of 600 or more feet of road, provided that the department shall be notified at least 2 business days before commencement of the construction.

(5) "Class III." Forest practices not listed under Classes IV, I or II above are "Class III" forest practices.  Among Class III forest practices are the following:

(a) Those requiring hydraulic project approval (RCW 75.20.100).

*(b) Those within the shorelines of the state other than those in a Class I forest practice.

*(c) Aerial application of insecticides, except where classified as a Class IV forest practice.

*(d) Aerial application of chemicals (except insecticides), except where classified as Class I or IV forest practices.

*(e) Harvest or salvage of timber except where classed as Class I, II or IV forest practices.

*(f) All road construction and reconstruction except as listed in Classes I, II and IV forest practices.

(g) Opening of new pits or extensions of existing pits over 1 acre.

*(h) Road maintenance involving:

(i) Replacement of bridges or culverts across Type 1, 2, 3, or flowing Type 4 Waters; or

(ii) Movement of material that has a direct potential for entering Type 1, 2, 3 or flowing Type 4 Waters or Type A or B Wetlands.

(i) Operations involving an applicant's bond in lieu of a landowner's signature.

(j) Site preparation or slash abatement not listed in Classes I or IV forest practices.

(k) Harvesting, road construction, site preparation or aerial application of pesticides on lands which contain cultural, historic or archaeological resources which, at the time the application or notification is filed, are:

(i) On or are eligible for listing on the National Register of Historic Places; or

(ii) Have been identified to the department as being of interest to an affected Indian tribe.

(l) Harvesting exceeding 19 acres in a designated difficult regeneration area.

(m) Utilization of an alternate plan.  See WAC 222-12-040.

*(n) Any filling of wetlands, except where classified as Class IV forest practices.

*(o) Harvesting, site preparation or aerial application of pesticides within 200 feet of a Type 1, 2, or 3 Water, or road construction within 200 feet of a Type 2 or 3 Water, within the areas on the salmonid listed map in WAC 222-16-088.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  98-07-047, 222-16-050, filed 3/13/98, effective 5/1/98; 97-24-091, 222-16-050, filed 12/3/97, effective 1/3/98; 93-12-001, 222-16-050, filed 5/19/93, effective 6/19/93.  Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW.  92-15-011, 222-16-050, filed 7/2/92, effective 8/2/92.  Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350.  91-23-052, 222-16-050, filed 11/15/91, effective 12/16/91.  Statutory Authority: RCW 76.09.040.  88-19-112 (Order 551, Resolution No. 88-1), 222-16-050, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), 222-16-050, filed 11/16/87, effective 1/1/88.  Statutory Authority: RCW 76.09.040 and 76.09.050.  82-16-077 (Resolution No. 82-1), 222-16-050, filed 8/3/82, effective 10/1/82; Order 263, 222-16-050, filed 6/16/76.]

OTS-2255.2


AMENDATORY SECTION(Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-16-080
Critical wildlife habitats (state) and critical habitat (federal) of threatened and endangered species.

(1) Critical wildlife habitats (state) of threatened or endangered species and specific forest practices designated as Class IV-Special are as follows:

(a) Bald eagle - harvesting, road construction, aerial application of pesticides, or site preparation within 0.5 mile of a known active nest site, documented by the department of fish and wildlife, between the dates of January 1 and August 15 or 0.25 mile at other times of the year; and within 0.25 mile of a communal roosting site.  Communal roosting sites shall not include refuse or garbage dumping sites.

(b) Gray wolf - harvesting, road construction, or site preparation within 1 mile of a known active den site, documented by the department of fish and wildlife, between the dates of March 15 and July 30 or 0.25 mile from the den site at other times of the year.

(c) Grizzly bear - harvesting, road construction, aerial application of pesticides, or site preparation within 1 mile of a known active den site, documented by the department of fish and wildlife, between the dates of October 1 and May 30 or 0.25 mile at other times of the year.

(d) Mountain caribou - harvesting, road construction, aerial application of pesticides, or site preparation within 0.25 mile of a known active breeding area, documented by the department of fish and wildlife.

(e) Oregon silverspot butterfly - harvesting, road construction, aerial or ground application of pesticides, or site preparation within 0.25 mile of an individual occurrence, documented by the department of fish and wildlife.

(f) Peregrine falcon - harvesting, road construction, aerial application of pesticides, or site preparation within 0.5 mile of a known active nest site, documented by the department of fish and wildlife, between the dates of March 1 and July 30; or harvesting, road construction, or aerial application of pesticides within 0.25 mile of the nest site at other times of the year.

(g) Sandhill crane - harvesting, road construction, aerial application of pesticides, or site preparation within 0.25 mile of a known active nesting area, documented by the department of fish and wildlife.

(h) Northern spotted owl - the following shall apply through June 30, 1996: Harvesting, road construction, or aerial application of pesticides on the most suitable 500 acres of nesting, roosting, and foraging habitat surrounding the northern spotted owl site center.  The most suitable habitat shall be determined by the department in cooperation with the department of fish and wildlife, tribes, and others with applicable expertise.  Consideration shall be given to habitat quality, proximity to the activity center and contiguity in selecting the most suitable 500 acres of habitat.

Beginning July 1, 1996, the following shall apply for the northern spotted owl:

(i) Within a SOSEA boundary (see maps in WAC 222-16-086), except as indicated in (h)(ii) of this subsection, harvesting, road construction, or aerial application of pesticides on suitable spotted owl habitat within a median home range circle that is centered within the SOSEA or on adjacent federal lands.

(ii) Within the Entiat SOSEA, harvesting, road construction, or aerial application of pesticides within the areas indicated for demographic support (see WAC 222-16-086(2)) on suitable spotted owl habitat located within a median home range circle that is centered within the demographic support area.

(iii) Outside of a SOSEA, harvesting, road construction, or aerial application of pesticides, between March 1 and August 31 on the seventy acres of highest quality suitable spotted owl habitat surrounding a northern spotted owl site center located outside a SOSEA.  The highest quality suitable habitat shall be determined by the department in cooperation with the department of fish and wildlife.  Consideration shall be given to habitat quality, proximity to the activity center and contiguity.

(iv) Small parcel northern spotted owl exemption.  Forest practices proposed on the lands owned or controlled by a landowner whose forest land ownership within the SOSEA is less than or equal to 500 acres and where the forest practice is not within 0.7 mile of a northern spotted owl site center shall not be considered to be on lands designated as critical wildlife habitat (state) for northern spotted owls.

(i) Western pond turtle - harvesting, road construction, aerial application of pesticides, or site preparation within 0.25 mile of a known individual occurrence, documented by the department of wildlife.

(j) Marbled murrelet.

(i) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction within an occupied marbled murrelet site.

(ii) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction within suitable marbled murrelet habitat within a marbled murrelet detection area.

(iii) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction within suitable marbled murrelet habitat containing 7 platforms per acre outside a marbled murrelet detection area.

(iv) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction outside a marbled murrelet detection area within a marbled murrelet special landscape and within suitable marbled murrelet habitat with 5 or more platforms per acre.

(v) Harvesting within a 300 foot managed buffer zone adjacent to an occupied marbled murrelet site that results in less than a residual stand stem density of 75 trees per acre greater than 6 inches in dbh; provided that 25 of which shall be greater than 12 inches dbh including 5 trees greater than 20 inches in dbh, where they exist.  The primary consideration for the design of managed buffer zone widths and leave tree retention patterns shall be to mediate edge effects.  The width of the buffer zone may be reduced in some areas to a minimum of 200 feet and extended to a maximum of 400 feet as long as the average of 300 feet is maintained.

(vi) Except that the following shall not be critical wildlife habitat (state):

(A) Where a landowner owns less than 500 acres of forest land within 50 miles of saltwater and the land does not contain an occupied marbled murrelet site; or

(B) Where a protocol survey (see WAC 222-12-090(14)) has been conducted and no murrelets were detected.  The landowner is then relieved from further survey requirements.  However, if an occupied marbled murrelet site is established, this exemption is void.

*(k) Salmonids - harvesting, road construction, aerial applications of pesticides, or site preparation, within the areas on the salmonid listed map in WAC 222-16-088, within 100 feet of a type 1, 2, or 3 water. Road construction means any new road construction, reconstruction, or road maintenance activity that is not a Class I forest practice.

(2) The following critical habitats (federal) designated by the United States Secretary of the Interior, or specific forest practices within those habitats, have been determined to not have the potential for a substantial impact on the environment:

Marbled murrelet critical habitat 50 C.F.R.  17.95(b), 61 Fed. Reg. 26256 as a result of provisions of the state's marbled murrelet rule.

(3) For the purpose of identifying forest practices which have the potential for a substantial impact on the environment with regard to threatened or endangered species newly listed by the Washington fish and wildlife commission and/or the United States Secretary of the Interior, the department shall after consultation with the department of fish and wildlife, prepare and submit to the board a proposed list of critical wildlife habitats (state) of threatened or endangered species.  This list shall be submitted to the board within 15 days of the listing of the species.  The department shall, at a minimum, consider potential impacts of forest practices on habitats essential to meeting the life requisites for each species listed as threatened or endangered.  Those critical wildlife habitats (state) adopted by the board shall be added to the list in subsection (1) of this section.  See WAC 222-16-050 (1)(b)(i).

(4) For the purpose of identifying any areas and/or forest practices within critical habitats (federal) designated by the United States Secretary of the Interior which do not have the potential for a substantial impact on the environment, the department shall, after consultation with the department of fish and wildlife, submit to the board a proposed list of any forest practices and/or areas proposed for exclusion from Class IV - special forest practices.  The department shall submit the list to the board within 120 days of the date the United States Secretary of the Interior publishes a final rule designating critical habitat (federal) in the Federal Register.  Those critical habitats excluded by the board from Class IV - Special shall be added to the list in subsection (2) of this section.  See WAC 222-16-050 (1)(b)(ii).

(5)(a) Except for bald eagles under subsection (1)(a) of this section, the critical wildlife habitats (state) of threatened and endangered species and specific forest practices designated in subsection (1) of this section are intended to be interim.  These interim designations shall expire for a given species on the earliest of:

(i) The effective date of a regulatory system for wildlife protection referred to in (b) of this subsection or of substantive rules on the species.

(ii) The delisting of a threatened or endangered species by the Washington fish and wildlife commission.

(b) The board shall examine current wildlife protection and department authority to protect wildlife and develop and recommend a regulatory system, including baseline rules for wildlife protection.  To the extent possible, this system shall:

(i) Use the best science and management advice available;

(ii) Use a landscape approach to wildlife protection;

(iii) Be designed to avoid the potential for substantial impact to the environment;

(iv) Protect known populations of threatened and endangered species of wildlife from negative effects of forest practices consistent with RCW 76.09.010; and

(v) Consider and be consistent with recovery plans adopted by the department of fish and wildlife pursuant to RCW 77.12.020(6) or habitat conservation plans or 16 U.S.C. 1533(d) rule changes of the Endangered Species Act.

(6) Regardless of any other provision in this section, forest practices applications shall not be classified as Class IV-Special based on critical wildlife habitat (state) (WAC 222-16-080(1)) or critical habitat (federal) (WAC 222-16-050 (1)(b)(ii)) for a species if the forest practices are consistent with one of the following proposed for protection of the species:

(a) A habitat conservation plan and permit or an incidental take statement covering such species approved by the Secretary of the Interior or Commerce pursuant to 16 U.S.C. 1536 (b) or 1539 (a); an "unlisted species agreement" covering such species approved by the U.S. Fish and Wildlife Service or National Marine Fisheries Service; or a "no-take letter" or other cooperative or conservation agreement entered into with a federal or state fish and wildlife agency pursuant to its statutory authority for fish and wildlife protection that addresses the needs of the affected species and that is subject to review under the National Environmental Protection Act, 42 U.S.C. 4321 et seq., or the State Environmental Policy Act, chapter 43.21C RCW, as applicable;

(b) A rule adopted by the U.S. Fish and Wildlife Service for the conservation of a particular threatened species pursuant to 16 U.S.C. 1533(d);

(c) A special wildlife management plan (SWMP) developed by the landowner and approved by the department in consultation with the department of fish and wildlife;

(d) A bald eagle management plan approved under WAC 232-12-292;

(e) A landowner option plan (LOP) for northern spotted owls developed pursuant to WAC 222-16-100(1); or

(f) A cooperative habitat enhancement agreement (CHEA) developed pursuant to WAC 222-16-105.

In those situations where one of the options above has been used, forest practices applications may still be classified as Class IV-Special based upon the presence of one or more of the factors listed in WAC 222-16-050(1), other than critical wildlife habitat (state) or critical habitat (federal) for the species covered by the existing plan.

(7) The department, in consultation with the department of fish and wildlife, shall review each SOSEA to determine whether the goals for that SOSEA are being met through approved plans, permits, statements, letters, or agreements referred to in subsection (6) of this section.  Based on the consultation, the department shall recommend to the board the suspension, deletion, modification or reestablishment of the applicable SOSEA from the rules.  The department shall conduct a review for a particular SOSEA upon approval of a landowner option plan, a petition from a landowner in the SOSEA, or under its own initiative.

(8) The department, in consultation with the department of fish and wildlife, shall report annually to the board on the status of the northern spotted owl to determine whether circumstances exist that substantially interfere with meeting the goals of the SOSEAs.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  97-24-091, 222-16-080, filed 12/3/97, effective 1/3/98; 97-15-105, 222-16-080, filed 7/21/97, effective 8/21/97.  Statutory Authority: Chapters 76.09 and 34.05 RCW.  96-12-038, 222-16-080, filed 5/31/96, effective 7/1/96.  Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  93-12-001, 222-16-080, filed 5/19/93, effective 6/19/93.  Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW.  92-15-011, 222-16-080, filed 7/2/92, effective 8/2/92.]


NEW SECTION
WAC 222-16-088
*Salmonid listed areas.

Place illustration here.

[]

OTS-2256.3


AMENDATORY SECTION(Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-24-050
Road maintenance.

*(1) Road maintenance and abandonment plan.

(a) The department will identify priorities for road maintenance and abandonment plans by watershed administrative unit by region using information such as the Lower Columbia Steelhead Conservation Initiative. The department shall choose priority WAUs every spring and fall.

(b) Landowners with 500 acres or more of ownership within the areas on the salmonid listed map in WAC 222-16-088 and in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC, must submit within 90 days after notification in the spring or by June 30 after notification in the fall by the department, for department approval, a road maintenance and abandonment plan for those drainages or road systems, within the identified watershed administrative units, that are active or will be active within two years. This subsection does not apply to landowners with an approved habitat conservation plan that has specific provisions for road maintenance.

(c) Landowners with less than 500 acres within the areas on the salmonid listed map in WAC 222-16-088 and in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC must submit a road maintenance and abandonment plan covering their entire ownership within the priority WAUs as per (a) of this subsection to the department prior to or concurrently with a forest practice notification or application for proposed road or harvest activities. Once approved, the landowner should attach or reference the approved road maintenance and abandonment plan when submitting subsequent applications.

(d) Landowners not required to submit road maintenance and abandonment plans under (b) or (c) of this subsection, when notified by the department, shall submit a plan for department approval for road maintenance and abandonment for those drainages or road systems the department determines based on physical evidence to have a potential to damage public resources.

((The)) (e) All road maintenance and abandonment plans ((is)) are subject to annual review. The plan must pay particular attention to those road segments that block fish passage or have the potential to deliver water or sediment to any typed water, and shall include:

(i) Ownership maps showing the road or road system;

(ii) Road status, whether active, inactive, orphan, abandoned or planned for abandonment;

(iii) Maintenance schedule and priorities for the year; and

(iv) Plan for further maintenance and reconstruction beyond the current year for repair of extensive damage.

(((b))) (f) The plan shall be submitted to the department region office on or before June 30, 1988, and each June 30th thereafter unless the department agrees that no further plans are necessary.

(((c))) (g) The department will review the plan annually with the landowner to determine whether it will be effective and is being implemented.

(((d))) (h) Such plans shall also be reviewed with departments of ecology, fish and wildlife, ((and)) affected Indian tribes, and interested parties, any of whom may request the department to hold an informal conference with the landowner.

(NOTE: The road maintenance and abandonment training manual and other materials made available by the department can be used for guidance in developing road maintenance and abandonment plans.)

*(2) Active roads.  An active road is a forest road being actively used for hauling of logs, pulpwood, chips, or other major forest products or rock and other road building materials.  To the extent necessary to prevent damage to public resources, the following maintenance shall be conducted on such roads:

(a) Culverts and ditches shall be kept functional.

(b) Road surface shall be maintained as necessary to minimize erosion of the surface and the subgrade.

(c) During and on completion of operations, road surface shall be crowned, outsloped, or water barred and berms removed from the outside edge except those intentionally constructed for protection of fills.

*(3) Inactive roads.  An inactive road is a forest road on which commercial hauling is discontinued for 1 or more logging seasons, and the forest landowner desires continuation of access for fire control, forest management activities, Christmas tree growing operations, occasional or incidental use for minor forest products harvesting or similar activities on such inactive roads:

(a) Before the first winter rainy season following termination of active use, nonfunctional ditches and culverts shall be cleared and the road surface shall be crowned, outsloped, water barred or otherwise left in a condition not conducive to accelerated erosion or interrupt water movement within wetlands; and

(b) Thereafter, except as provided in (c) of this subsection, the landowner shall clear or repair ditches or culverts which he/she knows or should know to be nonfunctional and causing or likely to cause material damage to a public resource.

(c) The landowner shall not be liable for penalties or monetary damages, under the act, for damage occurring from a condition brought about by public use, unless he/she fails to make repairs as directed by a notice to comply.

*(4) Additional culverts/maintenance.  If the department determines based on physical evidence that the above maintenance has been or will be inadequate to protect public resources and that additional measures will provide adequate protection it shall require the landowner or operator to either elect to:

(a) Install additional or larger culverts or other drainage improvements as deemed necessary by the department; or

(b) Agree to an additional road maintenance program.  Such improvements in drainage or maintenance may be required only after a field inspection and opportunity for an informal conference.

*(5) Abandoned roads.  An abandoned road is a forest road which the forest landowner has abandoned in accordance with procedures of (a) through (e) of this subsection.  Roads are exempt from maintenance only after (e) of this subsection is completed:

(a) Roads are outsloped, water barred, or otherwise left in a condition suitable to control erosion and maintain water movement within wetlands; and

(b) Ditches are left in a suitable condition to reduce erosion; and

(c) The road is blocked so that four wheel highway vehicles can not pass the point of closure at the time of abandonment; and

(d) Bridges, culverts, and fills on all waters are removed, except where the department determines other measures would provide adequate protection to public resources.

(e) The department shall determine whether the road has been abandoned according to procedures of this subsection.  If the department determines the road is properly abandoned, it shall within thirty days notify the landowner in writing that the road is officially abandoned.

*(6) Brush control.  Chemical control of roadside brush shall not be done where chemicals will directly enter any Type 1, 2, or 3 or flowing Type 4 or 5 Water or Type A or B Wetlands.  Refer to WAC 222-38-020 for additional information.

*(7) Road surface treatment.

(a) Apply oil to the road surface only when the temperature is above 55 degrees F and during the season when there is a minimal chance of rain for the next 48 hours.  Use of waste oil is subject to RCW 70.95I.060(5).

(b) Water the road surface prior to application of oil to assist in penetration.

(c) Construct a temporary berm along the road shoulder wherever needed to control runoff of the applied chemical.

(d) Take extreme care to avoid excess application of road chemicals.  Shut off the flow at all bridges.

(e) When cleaning out chemical storage tanks or the application equipment tanks used for storage and application of road treatment materials, dispose of the rinse water fluids on the road surface or in a place safe from potential contamination of water.

(f) The use of dry road chemicals shall be in compliance with WAC 222-38-020.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  97-24-091, 222-24-050, filed 12/3/97, effective 1/3/98; 93-12-001, 222-24-050, filed 5/19/93, effective 6/19/93.  Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW.  92-15-011, 222-24-050, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040.  87-23-036 (Order 535), 222-24-050, filed 11/16/87, effective 1/1/88.  Statutory Authority: RCW 76.09.040 and 76.09.050.  82-16-077 (Resolution No. 82-1), 222-24-050, filed 8/3/82, effective 10/1/82; Order 263, 222-24-050, filed 6/16/76.]

OTS-2257.3


AMENDATORY SECTION(Amending WSR 93-12-001, filed 5/19/93, effective 6/19/93)

WAC 222-30-040
Shade requirements to maintain stream temperature.

*(1) Determination of adequate shade.  The temperature prediction method in subsections (2) and (3) of this section shall be used to determine appropriate shade levels for flowing Type 1, 2, and 3 Waters to prevent excessive water temperatures which may have detrimental impact on aquatic resources.

*(2) Temperature prediction method.

(a) In addition to the riparian management zone requirements, leave trees shall be retained in riparian management zones on flowing Type 1, 2, and 3 Waters ((as provided by)).

(b) Leave trees shall also be retained as needed within the first 50 feet horizontal distance from the ordinary high water mark along the first 500 feet of flowing Type 4 or 5 Waters above Type 1, 2, and 3 Waters in the salmonid listed areas map in WAC 222-16-088. This provision, however, does not apply to landowners with an approved habitat conservation plan that has specific provisions for salmonids.

(c) The temperature prediction method is described in the board manual ((which)) and it includes the following considerations:

(((a))) (i) Minimum shade retention requirements; and

(((b))) (ii) Regional water temperature characteristics; and

(((c))) (iii) Elevation; and

(((d))) (iv) Temperature criteria defined for stream classes in chapter 173-201A WAC.

*(3) Leave tree requirements for shade.  The method described in subsection (2) of this section shall be used to establish the minimum shade cover based on site specific characteristics.  When site specific data indicate that preharvest conditions do not meet the minimums established by the method, no additional shade removal from riparian management zones will be allowed.

(4) Waivers. The department may waive or modify the shade requirements where:

(a) The applicant agrees to a staggered setting program producing equal or greater shade requirements to maintain stream temperature; or

(b) The applicant provides alternative means of stream temperature control satisfactory to the department; or

(c) The temperature method indicates that additional shade will not affect stream temperature.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  93-12-001, 222-30-040, filed 5/19/93, effective 6/19/93.  Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW.  92-15-011, 222-30-040, filed 7/2/92, effective 8/2/92.  Statutory Authority: RCW 76.09.040.  87-23-036 (Order 535), 222-30-040, filed 11/16/87, effective 1/1/88.  Statutory Authority: RCW 76.09.040 and 76.09.050.  82-16-077 (Resolution No. 82-1), 222-30-040, filed 8/3/82, effective 10/1/82; Order 263, 222-30-040, filed 6/16/76.]

Washington State Code Reviser's Office