EMERGENCY RULES
Date of Adoption: April 5, 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). Adds newly listed salmonids to an existing emergency rule. 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 March 17, 1999.
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; 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: For stream typing, data show many streams were mis-typed 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 proved 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.
Water Typing Emergency Rule: 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 have 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 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 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.
Salmonid Emergency Rule: On March 16, 1999, the NMFS listed seven additional Washington state salmonid stocks (i.e., ESUs or Evolutionary Significant Units) as threatened or endangered under the Endangered Species Act. These stocks and their listing status are:
Upper Columbia River Spring Chinook - endangered
Puget Sound Fall Chinook - threatened
Lower Columbia River Fall Chinook - threatened
Hood Canal Summer Chum - threatened
Lower Columbia River Chum - threatened
Middle Columbia Steelhead - threatened
Lake Ozette Sockeye - threatened
These findings continue to support the previously listed stocks covered under the emergency rule adopted by the Forest Practices Board on November 18, 1998, and readopted on February 10, 1999. These stocks, their status, and the dates listed are:
Upper Columbia Steelhead - endangered - August 1997
Snake River Steelhead - threatened - August 1997
Lower Columbia Steelhead - threatened - March 1998
Columbia River Bull Trout - threatened - June 1998
The Forest Practices Board and the Department of Ecology find good cause for an emergency rule to protect these salmonid stocks. 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 salmon, trout and char. Salmonids have several life history phases which include spawning, incubation, rearing and migration. Salmonids are most commonly associated with cool riverine waters in the temperate and arctic regions of the Northern Hemisphere. Although some species and stocks have adapted to marine and lactustrine (lake) environments for parts of their life history, they all have a common dependence on running cool fresh water and gravel that is reasonably free of fine sediment for spawning and incubation. Once the eggs hatch, most juveniles still require rearing habitat which includes forage, clean cool water, and cover provided by rocks, banks and large woody debris, although the duration of freshwater rearing varies among species and stocks. Stream nutrient conditions are important for those species with extended riverine rearing. Finally, most stocks need to be able to migrate upstream and downstream as both juveniles and adults.
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. Shade is most critical for species and stocks that are present during the summer. Temperatures above 10 to 18° C, depending on the species and feeding conditions, may cause declining health, reduced growth or weight loss, displacement to less desirable habitat, and, under prolonged or extreme conditions, death.
Adult salmonids are biologically timed to spawn within a certain temperature range and time period. Warmer conditions may force adults to spawn after their preferred time period, and they are then often in poorer physical condition which results in reduced survival of the progeny. Stocks that spawn in the late summer or early fall are especially vulnerable, including Hood Canal Summer Chum, Puget Sound Fall Chinook, Upper Columbia River Spring Chinook, and bull trout.
Nonsummer water temperatures may be important for juveniles of some anadromous stocks. Timing of egg hatching, emergence, and fry emigration of pink and chum salmon are strongly affected by freshwater temperature. Juvenile migration to marine waters (coho, steelhead and chinook) is biologically timed by temperature, solar periodicity, and possibly other factors such as flow. There appears to be a window of time (one or three months) for fish to reach marine waters when marine conditions are best for growth and survival.
To restore and maintain natural cool water temperatures, 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 warm the streams beyond their natural range. Solar heating is a cumulative effect, such that the loss of shade in upstream channels may reduce habitat quality downstream. Because of this, it is important to extend shading upstream into perennial nonfish-bearing waters. On a watershed scale, excessive loss of shade will reduce that amount of habitat available for rearing during the summer. The current Class AA water quality standard (16° C) was intended to fully protect salmonids; however, this standard has since been shown to be inadequate for bull trout and possibly other species. Water temperature standards are currently under review by the Washington Department of Ecology, and recommended revisions are expected some time this year.
Although direct solar radiation is the most significant effect, other factors can contribute to higher water temperatures. Micro-climate effects from upland clearcuts, ground water heating where shallow ground water become exposed by clearcuts, and channel widening from sediment aggradation are nonshade effects that may be significant in some channels.
Sediment. Sediment naturally enters stream channels from bank erosion and landslides. Certain forest practice activities can greatly accelerate the influx of sediment and can damage fish habitat. Sediment may come from infrequent massive influxes caused by induced landslides and severe bank erosion. Sediment from these sources often include both fine sediment and coarse sediment. Poor construction and maintenance of unpaved forest roads or soil disturbance from unsuspended yarding or heavy equipment near streams causes a steady influx of fine sediment into the channel.
Fine sediment can settle in spawning gravel, often filling the intergravel spaces. This reduces the survival of salmonid eggs by reducing oxygen levels, or it traps alevin (larval salmonids). This intergravel zone (termed the hyporheic zone) is also important habitat for most aquatic invertebrate species and plays an important role in the organic decomposition and nutrient recycling in the stream ecosystems, which are key to providing food for salmonids. The depth and width of the hyporheic zone can be significantly diminished by the influx of fine sediment, effectively blocking the penetration of oxygen and nutrients into the streambed.
Coarse sediment can be beneficial to fish habitat, providing spawning gravel and juvenile habitat. However, excessive quantities of sediment associated with landslides and rapid bank erosion can destroy habitat by filling pools and creating long stretches of gravel that are prone to scour (gravel mobilization) during floods. Scour destroys eggs and alevin.
Hydrology. Clearcut stands have the capacity to accumulate considerably more snow than forested stands with full canopies. As a result, the size and timing of surface run-off events can be changed as a result of forest management. This can occur primarily as a result of rain-on-snow events in harvested areas or through snowmelt run-off on the eastside. These run-off events are more likely to be triggered at higher elevations where snow has greater potential to accumulate. Forest roads can also exacerbate surface run-off by extending the watershed drainage network up roadside ditches and sometimes tread surfaces, resulting in faster run-off from roads that are directly connected to streams.
Both of these run-off effects result in higher peak flows in stream channels, which in turn increases the frequency and extent of scour and, where streambanks are unstable, increases stream bank erosion. These effects can kill salmonid eggs and alevin, fill pools, and degrade other physical habitat features.
Large Woody Debris. Juvenile salmonids need pools and cover for refuge and desired feeding conditions. Stream morphology that contains adequate pools requires input of large woody debris (LWD) on a continuous basis. The LWD provides structure in the streams and creates the formation of pools and cover. It also moderates the movement of sediment and contributes to the stability of spawning gravel. Very large pieces of wood are required to function effectively because of the large flood events common to the Northwest. Conifer species are preferred for LWD because they are more resistant to decay, and they achieve greater sizes than deciduous species.
Adult fish also use LWD for resting areas and cover during migration. This need is particularly important in large anadromous stocks and bull trout that hold over summer in rivers prior to spawning; they need deep cool pools with cover for survival during low flow periods. Stocks especially vulnerable include spring chinook, summer steelhead, bull trout and, to a lesser extent, the late summer spawners such as Puget Sound Chinook and Hood Canal Summer Chum.
Trees from the adjacent riparian stand are an important source of LWD. In larger stream channels, wood from upstream sources are also important. Large, multiple rotation conifers are needed, especially in larger stream channels. Harvest of riparian forest stands will result in long term declines in LWD abundance.
Fish Passage. Adult salmonids 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.
Bank Stability. Trees and shrubs rooted in the banks of a stream channel are important in maintaining a deep channel and preventing the erosion of sediment from the stream banks. Exposed root masses are important refuge for juvenile fish. Removal of logs from the channel and stream bank can contribute to fine sediment erosion and loss of in-channel habitat features.
Specific Species Biological Attributes and How They Relate to Forest Practices Activities:
Chum Salmon. Migrating adult chum salmon enter rivers and streams to spawn from September to February; there is considerable variation among stocks. Most stocks, including the two listed on March 16, 1999, are not extensive freshwater migrants. They prefer spawning areas close to marine waters, and they rarely jump falls greater than four feet in height. Spawning may occur individually or enmass (i.e., large numbers on one spawning bed) in both rivers and streams. Juveniles emigrate to sea within weeks of emergence from gravel while they are still fry (i.e., at a very small size). During their brief freshwater residence, juveniles use intergravel spaces, brushy in-water cover, shallow river margins, and backwater sloughs as refuge from predators and water currents.
Chum salmon need an abundance of clean, stable gravel. Stability may be provided by low channel gradients, LWD and other hydraulic obstructions, or some combination of both. Adult Hood Canal Summer Chum may enter fresh water at a time when solar heating is still significant and flow is low, so shading and deep pool habitat should be fully protected. Full shade protection is also recommended for Columbia River Chum because there is uncertainty about critical timing of hatching and emigration for the survival of juveniles in early ocean life.
Fall Chinook Salmon. Chinook salmon enter rivers from August to November, spawning primarily in rivers and, less frequently, streams. Juvenile chinook emerge from the gravel in March and April. Freshwater residency varies considerably, both within stocks and between stocks. Juveniles may remain in freshwater for only two to three months, during which time they actively feed and grow. Some juveniles may stay in freshwater over the summer. A few of these emigrate during the summer and fall, but most wait until the following spring.
Other than the fact that they prefer larger channels, the spawning and juvenile rearing habitat requirements of chinook are typical of other salmonids. They need shade, clean stable spawning gravel, LWD for pools and cover, and shade for cool water temperatures.
Spring Chinook Salmon. The life history and habitat requirements of spring chinook are similar to fall chinook, with the exception that adult migration in freshwater starts prior to July 1, and spawning occurs in August and September. Thus, there are special habitat requirements associated with over-summer holding and spawning during the time when flow is very low and temperatures are at their peak. Many spring chinook stocks are associated with cold, often glacial, river systems.
Mid-Columbia Steelhead. This is a "summer" steelhead stock, meaning that adults enter fresh water as early as a year before spawning. Part of the adult population spend the summer in freshwater and need full shade protection, and they need deep pools for holding during the late summer low flow period. Steelhead are the strongest jumpers among anadromous salmonids, with leaps of up to 20' vertical feet under favorable pool and flow conditions. More often than any other anadromous species, they define the upper extent of anadromous utilization. Spawning occurs in March, April, and May, and the fry emerge from the gravel during the summer. While some steelhead push to the headwaters to spawn in small channels, others spawn in large rivers. Juvenile steelhead typically spend one to three summers in freshwater before emigrating to sea. Steelhead are more likely to use steeper gradients for both spawning and rearing than other anadromous species.
Lake Ozette Sockeye. Lake Ozette Sockeye spawn in tributaries to Lake Ozette. As with most sockeye stocks, the juveniles rear in lakes for one to two years before emigrating to the ocean. Thus, the habitat requirements of this stock require protection of lactustrine habitat in addition to the riverine spawning and incubation habitat required by other species. Lake nutrient conditions and competitive and predatory interactions with other lake species often affect the survival and productivity of sockeye stocks.
Bull Trout. Bull trout (Salvelinus confluentus), a native char, is 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 (MBTSG 1998; Baxter et al., in press; Baxter and Hauer, in prep.).
Dolly Varden (Salvelinus malma) and bull trout (Salvelinus confluentus) were considered to be the same species until the late 1970s 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.
Bull trout habitat requirements differ from other salmonids in the following ways:
| • | 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 time in the gravels before emergence (220+ days) and thus are more vulnerable to sediment and scouring peak flows. |
Shade and Stream Temperature Effects on Bull Trout. Bull trout are glacial relics and require a narrow range of cold temperature conditions to rear and reproduce (Brown 1994, Adams and Bjornn 1997, Buchanan and Gregory 1997). Temperatures required to initiate spawning (late August through October) vary from 4-11°C, depending on the drainage (McPhail and Murray 1979, Wydoski and Whitney 1979, Fraley and Shepard 1989, Kraemer 1991, Buchanan and Gregory 1997). Egg incubation (late August through April) occurs at 1-6°C (McPhail and Murray 1979, Weaver and White 1985, Brown 1994, Buchanan and Gregory 1997). Optimal temperature ranges for juvenile rearing occur from 4-10°C (McPhail and Murray 1979, Buchanan and Gregory 1997). In the Flathead drainage in Montana, bull trout juveniles have been rarely observed in streams with summer temperatures exceeding 15°C (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 18°C 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 12°C (Adams 1994, Clancy 1996, Buchanan and Gregory 1997). Optimum temperatures for migration are 10-12°C (McPhail and Murray 1979, Buchanan and Gregory 1997).
Various factors contribute towards providing for cool water in streams (shade, groundwater contribution, elevation, etc.). Shade is the primary factor that is impacted by land management and 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 18°C 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 10°C 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 10°C 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 Effects on Bull Trout. The long overwinter intragravel incubation and development for bull trout (average 220 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; MBTSG 1998; Baxter et al., in press).
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 and Bull Trout. 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 (Shepard et al. 1984b, Fraley and Shepherd 1989, Goetz 1989, Brown 1994). 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 and Bull Trout. 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 man-made 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. ESA salmonid listings are given on page one.
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 17.5 million acres of nonfederal land, of which about 8.4 million acres are state and private forest land covered by the current forest practices rules. The number of ESU acres are:
Listed Areas (ESUs) | Total Nonfederal Acres | Nonfederal Forest Land Acres |
| Listed before March 16, 1999 | 11,105,062 | 4,339,279 |
| Listed on March 16, 1999 | 6,477,298 | 4,111,385 |
| Total | 17,582,360 | 8,450,664 |
When the 1998 listings occurred, there were approximately 1,398 approved applications within two hundred feet of fish-bearing streams in the steelhead and bull trout ESUs. The department estimates that there are 4,705 approved applications in the chum, chinook and sockeye areas. Since operations under these permits may have some impact on salmonid habitat, these applicants have been or are being sent letters notifying them of the listings. If they had questions, the letter said they should contact National Marine Fisheries Service or the United States Fish and Wildlife Service directly for clarification whether their operations may cause a concern for listed steelhead.
Since the listings last year, five hundred and fifty-eight applications/notifications have been approved within two hundred feet of fish-bearing waters within the listed areas for bull trout and steelhead. 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 4,894 applications in all the listed ESUs will be approved between now and when a permanent rule might be adopted and become effective (estimated to be Winter 2000). These applications would be within two hundred feet of fish-bearing waters. Since permits are effective for a two-year period, applications approved prior to a new permanent rule taking effect in 2000 would be valid through 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 16 or 18 degrees centigrade. These standards may be modified soon by the Department of Ecology. At the present time, shade is not fully provided on some 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. There are some circumstances where significant shading occurs from beyond fifty feet.
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 Soil Disturbance. Under the current rules, bank stability is protected except where bank erosion rates are high. It applies to all logs embedded in the bank and all trees and other vegetation rooted in the bank. Under some circumstances, especially at high elevations where shade requirements do not call for a wide buffer, soils disturbance from yarding and heavy equipment can result in fine sediment entering the stream and damaging spawning beds. A minimum of 30' is needed to protect stream bank stability and soil disturbance. Additional protection is needed in the case of rapid stream bank erosion, or soil and slope conditions conductive to surface erosion and soil transport.
Forest Roads. 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. Where fine sediment is not a concern, road drainages still need to be disconnected from stream channels as much as possible to reduce hydrologic impacts from road networks.
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, current rules often allow harvest of the larger multiple rotation conifers within the RMZ, which are needed to provide functioning LWD in streams larger than 10' wide.
Summary. The literature indicates that in order to protect bank stability and prevent surface erosion of fine sediment, a thirty foot no-cut buffer and no heavy equipment buffer is recommended. In addition, to achieve 95% recruitment of the key piece wood (i.e., 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.). 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.
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. These temperature standards are being updated in the near future. 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.
April 5, 1999
Tom Fitzsimmons
Director
OTS-2680.3
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)) April 6, 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.]