WSR 99-07-077

EMERGENCY RULES

DEPARTMENT OF ECOLOGY


[ Order 99-04-- Filed March 17, 1999, 3:12 p.m. ]

Date of Adoption: March 9, 1999.

Purpose: To adopt by reference modifications to the forest practices rules to provide greater protection for federally listed threatened and endangered salmonids (including bull trout). This procedural rule classifies forest practices in mapped areas as Class IV-Special, requiring additional environmental review. Includes revisions of Type 2 and 3 waters and defines requirements for the Forest Practices Board manual. Supercedes emergency rule filed on November 23, 1998.

Citation of Existing Rules Affected by this Order: Amending chapter 173-202 WAC.

Statutory Authority for Adoption: RCW 90.48.420, 76.09.040, and chapter 34.05 RCW.

Other Authority: Chapter 43.21A 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.

Reasons for this Finding: For stream typing, data shows many streams were mistyped and this emergency rule would correct those errors and provide protection commensurate with resource values and based on current information. Typing of streams affects protection measures. Salmonid (including bull trout) part will provide additional protection through environmental review of salmonid species listed as threatened or endangered by the National Marine Fisheries Service. This action will help manage forestry activities that might negatively impact listed fish.

WATERTYPING:

The Forest Practices Board (FPB) and the Department of Ecology (DOE) find good cause for an emergency to modify the water typing rules. This document organizes and summarizes information presented to and discussed by the board in public meetings. The reasons for findings are as follows:

New data has shown the physical characteristics of streams, as defined in the current forest practices rules, are no longer accurate. Accurate water typing is critical to public resource protection. This emergency rule updates those physical characteristics based on current knowledge so that appropriate resource protection can be provided to fish habitat and water quality.

This emergency rule establishes presumptions for determining fish use in the absence of field verification and is necessary during permanent rule making updating the water type rules and associated riparian protection. Because water typing triggers riparian protection through the forest practices rules, watershed analysis, and some local land use decisions, the definitions used to determine water types must reflect current knowledge about fish use and habitat. Due to significant field verification of water types and research, more is known today about fish distribution and the physical characteristics of fish habitat than was known when the existing water type definitions were written (see WAC 222-16-030). In addition, the Clean Water Act section 303(d) listings, and actual and potential Endangered Species Act listings cause increased pressure on the forest practices regulation system that will result in increased cost and complexities for all participants. If the water typing system is not upgraded immediately, it will contribute to potential listings and increase the associated burdens of such listings.

In August 1994, the Point-No-Point Treaty Council published a report, Stream Typing Errors in Washington Water Type Maps for Watersheds of Hood Canal and the Southwest Olympic Peninsula. Simultaneously, the Quinault Indian Nation and the Department of Fish and Wildlife were also reviewing water types in the southwest part of the Olympic Peninsula. Data from these studies indicated that 72% of the Type 4 streams were actually Type 2 or 3 streams. In addition, projects funded by the United States Fish and Wildlife Service with cooperation from some western Cascade landowners and Washington trout have also resulted in significant upgrades.

The intent of the Forest Practices Act is to meet water quality standards under the Clean Water Act. As indicated by the number of water bodies listed under section 303(d) of the Clean Water Act, water quality standards are not being met. The number of water bodies included on the Department of Ecology's 303(d) water quality limited list has increased and now includes many forested streams. Numerous fish stocks are being considered for listing under the Endangered Species Act. The state has 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. Water quality standards cannot be met if inaccurate stream typing information is used in assessing the impacts of forest practices.

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

The FPB and DOE 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.

SALMONIDS:

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, such as sediment deposition and resultant stream widening, can increase temperature. 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 thirty-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 one hundred 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 evolutionarily significant unit (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 of Natural Resources 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 and ecology are 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 as impaired under section 303(d) of the Clean Water Act, water quality standards are often 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 0, Amended 1, 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.

March 9, 1999

Tom Fitzsimmons

Director

OTS-2680.2


AMENDATORY SECTION(Amending Order 97-46, filed 3/30/98, effective 4/30/98)

WAC 173-202-020
Certain WAC sections adopted by reference.

The following sections of the Washington Administrative Code existing on March ((13, 1998)) 17, 1999, are hereby adopted by reference as part of this chapter in all respects as though the sections were set forth herein in full:


WAC 222-08-035--Continuing review of forest practices regulations.

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

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

WAC 222-10-043--*Salmonids.

WAC 222-12-010--Authority.

WAC 222-12-040--Alternate plans.

WAC 222-12-045--Adaptive management.

WAC 222-12-046--Cumulative effect.

WAC 222-12-070--Enforcement policy.

WAC 222-12-090--Forest practices board manual.

WAC 222-16-010--General definitions.

WAC 222-16-030--Water typing system.

WAC 222-16-035--Wetland typing system.

WAC 222-16-050 (1)(a), (1)(e), (1)(h), (1)(i), (1)(j), (3)(b), (3)(c), (3)(d), (3)(e), (3)(f), (3)(n), (3)(o), (3)(p), (4)(c), (4)(d), (4)(e), (5)(b), (5)(c), (5)(d), (5)(e), (5)(f), (5)(h), (5)(n), (5)(o)--Classes of forest practices.

WAC 222-16-070--Pesticide uses with the potential for a substantial impact on the environment.

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

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

WAC 222-22-010--Policy.

WAC 222-22-020--Watershed administrative units.

WAC 222-22-030--Qualification of watershed resource analysts, specialists, and field managers.

WAC 222-22-040--Watershed prioritization.

WAC 222-22-050--Level 1 watershed resource assessment.

WAC 222-22-060--Level 2 watershed resource assessment.

WAC 222-22-070--Prescription recommendation.

WAC 222-22-080--Approval of watershed analysis.

WAC 222-22-090--Use and review of watershed analysis.

WAC 222-22-100--Application review prior to watershed analysis.

WAC 222-24-010--Policy.

WAC 222-24-020 (2), (3), (4), (6)--Road location.

WAC 222-24-025 (2), (5), (6), (7), (8), (9), (10)--Road design.

WAC 222-24-030 (2), (4), (5), (6), (7), (8), (9)--Road construction.

WAC 222-24-035 (1), (2)(c), (2)(d), (2)(e), (2)(f)--Landing location and construction.

WAC 222-24-040 (1), (2), (3), (4)--Water crossing structures.

WAC 222-24-050--Road maintenance.

WAC 222-24-060 (1), (2), (3), (6)--Rock quarries, gravel pits, borrow pits, and spoil disposal areas.

WAC 222-30-010--Policy--Timber harvesting.

WAC 222-30-020 (2), (3), (4), (5), (7)(a), (7)(e), (7)(f), (8)(c)--Harvest unit planning and design.

WAC 222-30-025--Green-up: Even-aged harvest size and timing.

WAC 222-30-030--Stream bank integrity.

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

WAC 222-30-050 (1), (2), (3)--Felling and bucking.

WAC 222-30-060 (1), (2), (3), (5)(c)--Cable yarding.

WAC 222-30-070 (1), (2), (3), (4), (5), (7), (8), (9)--Tractor and wheeled skidding systems.

WAC 222-30-080 (1), (2)--Landing cleanup.

WAC 222-30-100 (1)(a), (1)(c), (4), (5)--Slash disposal.

WAC 222-34-040--Site preparation and rehabilitation.

WAC 222-38-010--Policy--Forest chemicals.

WAC 222-38-020--Handling, storage, and application of pesticides.

WAC 222-38-030--Handling, storage, and application of fertilizers.

WAC 222-38-040--Handling, storage, and application of other forest chemicals.

[Statutory Authority: RCW 90.48.420, 76.09.040 and chapter 34.05 RCW.  98-08-058 (Order 97-46), 173-202-020, filed 3/30/98, effective 4/30/98.  Statutory Authority: RCW 90.48.420, 76.09.040, [76.09.]050 and chapter 34.05 RCW. 98-07-026 (Order 97-41), 173-202-020, filed 3/10/98, effective 4/10/98. Statutory Authority: RCW 90.48.420 and 76.09.040.  94-17-011, 173-202-020, filed 8/8/94, effective 9/8/94; 93-11-062, 173-202-020, filed 5/13/93, effective 6/13/93; 93-01-091 (Order 92-51), 173-202-020, filed 12/16/92, effective 1/16/93.  Statutory Authority: Chapters 90.48 and 76.09 RCW.  92-14-098, 173-202-020, filed 6/30/92, effective 8/1/92.  Statutory Authority: Chapter 76.09 RCW.  88-22-030 (Order 88-19), 173-202-020, filed 10/27/88.  Statutory Authority: RCW 76.09.040.  87-23-017 (Order 87-5), 173-202-020, filed 11/10/87, effective 1/1/88; 83-15-045 (Order DE 82-37), 173-202-020, filed 7/19/83; Order DE 76-32, 173-202-020, filed 7/13/76.]

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