WSR 99-08-077

EMERGENCY RULES

FOREST PRACTICES BOARD


[ Filed April 6, 1999, 9:22 a.m. ]

Date of Adoption: March 31, 1999.

Purpose: To modify forest practices rules that define Type 2 and 3 Waters in WAC 222-16-030, and define requirements for Forest Practices Board manual.

Citation of Existing Rules Affected by this Order: Amending WAC 222-12-090 Forest practices board manual and 222-16-030 Water typing system.

Statutory Authority for Adoption: RCW 76.09.040 and chapter 34.05 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: The Forest Practices Board and the Department of Ecology 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 that 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 303(d) water quality and actual and potential ESA 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 waterbodies 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 is 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.

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 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, 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.

April 5, 1999

Jennifer M. Belcher

Commissioner of Public Lands

OTS-1831.1


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

WAC 222-12-090
Forest practices board manual.

When approved by the board the manual serves as an advisory technical supplement to these forest practices regulations.  The department, in cooperation with the departments of fish and wildlife, agriculture, ecology, and such other agencies, affected Indian tribes, or interested parties as may have appropriate expertise, is directed to prepare, and submit to the board for approval, revisions to the forest practices board manual.  The manual shall include:

(1) Method for determination of adequate shade requirements on streams needed for use with WAC 222-30-040.

(2) The standard methods for measuring channel width, stream gradient and flow which are used in the water typing criteria WAC 222-16-030.

(3) A chart for establishing recommended permanent culvert sizes and associated data.

(4) Guidelines for clearing slash and debris from Type 4 and 5 Waters.

(5) Guidelines for landing location and construction.

(6) Guidelines for determining acceptable stocking levels.

(7) Guidelines for calculating average widths of riparian management zones.

(8) Guidelines for wetland delineation.

(9) Guidelines for wetland replacement or substitution.

(10) A list of nonnative wetland plant species.

(11) The standard methodology, which shall specify the quantitative methods, indices of resource conditions, and definitions, for conducting watershed analysis under chapter 222-22 WAC.  The department, in consultation with Timber/Fish/Wildlife's Cooperative Monitoring, Evaluation and Research Committee (CMER), may make minor modifications to the version of the standard methodology approved by the board.  Substantial amendments to the standard methodology requires approval by the board.

(12) A list of special concerns related to aerial application of pesticides developed under WAC 222-16-070(3).

(13) Guidelines for determining fish use for the purpose of typing waters under WAC 222-16-030.

(14) Survey protocol for marbled murrelets. The Pacific seabird survey protocol in effect March 1, 1997, shall be used when surveying for marbled murrelets in a stand.  Surveys conducted before the effective date of this rule are valid if they were conducted in substantial compliance with generally accepted survey protocols in effect at the beginning of the season in which they were conducted.

(15) The department shall, in consultation with the department of fish and wildlife, develop platform protocols for use by applicants in estimating the number of platforms, and by the department in reviewing and classifying forest practices under WAC 222-16-050.  These protocols shall include:

(a) A sampling method to determine platforms per acre in the field;

(b) A method to predict the number of platforms per acre based on information measurable from typical forest inventories.  The method shall be derived from regression models or other accepted statistical methodology, and incorporate the best available data; and

(c) Other methods determined to be reliable by the department, in consultation with the department of fish and wildlife.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  97-24-091, 222-12-090, filed 12/3/97, effective 1/3/98; 97-15-105, 222-12-090, filed 7/21/97, effective 8/21/97.  Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW.  92-15-113, 222-12-090, filed 7/21/92, effective 8/21/92.  Statutory Authority: RCW 76.09.040.  88-19-112 (Order 551, Resolution No. 88-1), 222-12-090, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), 222-12-090, 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), 222-12-090, filed 8/3/82, effective 10/1/82; Order 263, 222-12-090, filed 6/16/76.]

OTS-1967.2


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

WAC 222-16-030
Water typing system.

*The department in cooperation with the departments of fish and wildlife, and ecology, and in consultation with affected Indian tribes shall classify streams, lakes and ponds and prepare stream classification maps showing the location of Type 1, 2, 3 and 4 Waters within the various forested areas of the state.  Such maps shall be available for public inspection at region offices of the department.  The waters will be classified using the following criteria.  If a dispute arises concerning a water type the department shall make available informal conferences, which shall include the departments of fish and wildlife, and ecology, and affected Indian tribes and those contesting the adopted water types.  These conferences shall be established under procedures established in WAC 222-46-020.

*(1) "Type 1 Water" means all waters, within their ordinary high-water mark, as inventoried as "shorelines of the state" under chapter 90.58 RCW and the rules promulgated pursuant to chapter 90.58 RCW, but not including those waters' associated wetlands as defined in chapter 90.58 RCW.

*(2) "Type 2 Water" shall mean segments of natural waters which are not classified as Type 1 Water and have a high fish, wildlife, or human use.  These are segments of natural waters and periodically inundated areas of their associated wetlands, which:

(a) Are diverted for domestic use by more than 100 residential or camping units or by a public accommodation facility licensed to serve more than 100 persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users.  Such waters shall be considered to be Type 2 Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

(b) Are diverted for use by federal, state, tribal or private fish hatcheries.  Such waters shall be considered Type 2 Water upstream from the point of diversion for 1,500 feet and tributaries if highly significant for protection of downstream water quality. The department may allow additional harvest beyond the requirements of Type 2 Water designation provided the department determines after a landowner-requested on-site assessment by the department of fish and wildlife, department of ecology, the affected tribes and interested parties that:

(i) The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and

(ii) Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery;

(c) Are within a federal, state, local, or private campground having more than 30 camping units: Provided, That the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit, trail or other park improvement;

(((c))) (d) Are used by substantial numbers of anadromous or resident game fish for spawning, rearing or migration.  Waters having the following characteristics are presumed to have highly significant fish populations:

(i) Stream segments having a defined channel 20 feet or greater in width between the ordinary high-water marks and having a gradient of less than 4 percent.

(ii) Lakes, ponds, or impoundments having a surface area of 1 acre or greater at seasonal low water; or

(((d))) (e) Are used by salmonids for off-channel habitat.  These areas are critical to the maintenance of optimum survival of juvenile salmonids.  This habitat shall be identified based on the following criteria:

(i) The site must be connected to a stream bearing salmonids and accessible during some period of the year; and

(ii) The off-channel water must be accessible to juvenile salmonids through a drainage with less than a 5% gradient.

*(3) "Type 3 Water" shall mean segments of natural waters which are not classified as Type 1 or 2 Water and have a moderate to slight fish, wildlife, and human use.  These are segments of natural waters and periodically inundated areas of their associated wetlands which:

(a) Are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users.  Such waters shall be considered to be Type 3 Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

(b) Are used by significant numbers of anadromous or resident game fish for spawning, rearing or migration.  Guidelines for determining fish use are described in the Forest Practices Board Manual.  If fish use has not been determined:

(i) Waters having the following characteristics are presumed to have significant anadormous or resident game fish use:

(((i))) (A) Stream segments having a defined channel of ((5)) 2 feet or greater in width between the ordinary high-water marks in Western Washington; or 3 feet or greater in width between the ordinary high-water marks in Eastern Washington; and having a gradient ((of less than 12)) 16 percent ((and not upstream of a falls of more than 10 vertical feet)) or less;

(B) Stream segments having a defined channel of 2 feet or greater in width between the ordinary high-water marks in Western Washington; or 3 feet or greater in width between the ordinary high-water marks in Eastern Washington; and having a gradient greater than 16 percent and less than or equal to 20 percent; and having greater than 50 acres in contributing basin size in Western Washington; or greater than 175 acres in contributing basin size in Eastern Washington based on hydrographic boundaries;

(ii) The department shall waive or modify the characteristics in (i) above where:

(A) Waters have confirmed, long term, naturally occurring water quality parameters incapable of supporting anadromous or resident game fish;

(B) Snowmelt streams have short flow cycles that do not support successful life history phases of anadromous or resident game fish.  These streams typically have no flow in the winter months and discontinue flow by June 1; or

(C) Sufficient information about a geographic region is available to support a departure from the characteristics in (i), as determined in consultation with the department of fish and wildlife, department of ecology, affected tribes and interested parties.

(((ii))) (iii) Ponds or impoundments having a surface area of less than 1 acre at seasonal low water and having an outlet to an anadromous fish stream.

(((c) Are used by significant numbers of resident game fish.  Waters with the following characteristics are presumed to have significant resident game fish use:

(i) Stream segments having a defined channel of 10 feet or greater in width between the ordinary high-water marks; and a summer low flow greater than 0.3 cubic feet per second; and a gradient of less than 12 percent.

(ii))) (iv) For resident game fish ponds or impoundments having a surface area greater than 0.5 acre at seasonal low water; or

(((d))) (c) Are highly significant for protection of downstream water quality.  Tributaries which contribute greater than 20 percent of the flow to a Type 1 or 2 Water are presumed to be significant for 1,500 feet from their confluence with the Type 1 or 2 Water or until their drainage area is less than 50 percent of their drainage area at the point of confluence, whichever is less.

*(4) "Type 4 Water" classification shall be applied to segments of natural waters which are not classified as Type 1, 2 or 3, and for the purpose of protecting water quality downstream are classified as Type 4 Water upstream until the channel width becomes less than 2 feet in width between the ordinary high-water marks.  Their significance lies in their influence on water quality downstream in Type 1, 2, and 3 Waters.  These may be perennial or intermittent.

*(5) "Type 5 Water" classification shall be applied to all natural waters not classified as Type 1, 2, 3 or 4; including streams with or without well-defined channels, areas of perennial or intermittent seepage, ponds, natural sinks and drainageways having short periods of spring or storm runoff.

*(6) For purposes of this section:

(a) "Residential unit" means a home, apartment, residential condominium unit or mobile home, serving as the principal place of residence.

(b) "Camping unit" means an area intended and used for:

(i) Overnight camping or picnicking by the public containing at least a fireplace, picnic table and access to water and sanitary facilities; or

(ii) A permanent home or condominium unit or mobile home not qualifying as a "residential unit" because of part time occupancy.

(c) "Resident game fish" means game fish as described in the Washington game code that spend their life cycle in fresh water.  Steelhead, searun cutthroat and Dolly Varden trout are anadromous game fish and should not be confused with resident game fish.

(d) "Public accommodation facility" means a business establishment open to and licensed to serve the public, such as a restaurant, tavern, motel or hotel.

(e) "Natural waters" only excludes water conveyance systems which are artificially constructed and actively maintained for irrigation.

(f) "Seasonal low flow" and "seasonal low water" mean the conditions of the 7-day, 2-year low water situation, as measured or estimated by accepted hydrologic techniques recognized by the department.

(g) "Channel width and gradient" means a measurement over a representative section of at least 500 linear feet with at least 10 evenly spaced measurement points along the normal stream channel but excluding unusually wide areas of negligible gradient such as marshy or swampy areas, beaver ponds and impoundments.  Channel gradient may be determined utilizing stream profiles plotted from United States geological survey topographic maps.

(h) "Intermittent streams" means those segments of streams that normally go dry.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW.  97-24-091, 222-16-030, filed 12/3/97, effective 1/3/98.  Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW.  94-01-134, 222-16-030, filed 12/20/93, effective 1/1/94.  Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW.  92-15-011, 222-16-030, filed 7/2/92, effective 8/2/92.  Statutory Authority: RCW 76.09.040.  87-23-036 (Order 535), 222-16-030, filed 11/16/87, effective 1/1/88; Order 263, 222-16-030, filed 6/16/76.]

Washington State Code Reviser's Office