WSR 04-08-064

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed April 5, 2004, 3:08 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-04-008.

Title of Rule: Integration of hydraulic project approvals and forest practice applications for nonfish bearing streams.

Purpose: Waive the requirement for a hydraulic project approval (HPA) for forest practices conducted in or across nonfish bearing waters under an approved forest practices application (FPA) issued by the Department of Natural Resources.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: The forests and fish agreement and RCW 76.09.030(2) include statements that the laws, rules and programs governing hydraulic projects should be more closely integrated with the laws, rules and programs governing forest practices. Pursuant to chapter 76.09 RCW, the Forest Practices Board has adopted regulations that include, among other items, fish protection measures normally included in HPAs for projects in nonfish bearing streams. Based on these upgraded fish protection measures adopted by the Forest Practices Board on May 17, 2001, the department is proposing to amend WAC 220-110-035 so that forest practices conducted in or across nonfish bearing waters with an approved forest practices application or notification issued by the Department of Natural Resources will not require an HPA.

Reasons Supporting Proposal: Continues implementation of the forests and fish agreement and meets the objectives of RCW 76.09.030(2); will provide equal or improved resource protection for fish and fish habitat; streamlines the permit process for landowners by reducing duplicative permits.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Greg Hueckel, 1111 Washington Street, Olympia, (360) 902-2416; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

Name of Proponent: Department of Fish and Wildlife, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule will waive the requirement for an HPA for forest practices conducted in or across nonfish bearing waters under an approved FPA issued by the Department of Natural Resources. This integration of the HPA and FPA for nonfish bearing streams was envisioned in the forests and fish agreement, which outlined changes to forest practices rules to protect riparian and aquatic resources on private forestland. Pursuant to chapter 76.09 RCW, the Forest Practices Board has adopted regulations that include, among other items, fish protection measures normally included in HPAs for projects in nonfish bearing streams. Based on the upgraded fish protection measures in chapters 222-16, 222-24, and 222-30 WAC adopted by the Forest Practices Board on May 17, 2001, WDFW is modifying WAC 220-110-035 so that forest practices, as defined in chapter 76.09 RCW, conducted in or across nonfish bearing waters (type Np and Ns waters as defined under WAC 222-16-030 and type 4 and 5 waters as defined in WAC 222-16-031), with an approved forest practices application or notification issued by the Department of Natural Resources, will not require an HPA. This will achieve equal or better protection of fish life while reducing unnecessary permitting requirements for applicants.

Proposal Changes the Following Existing Rules: Amends WAC 220-110-035 Miscellaneous hydraulic projects -- Permit requirements and exemptions.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Measures Required by the Proposal: The requirement to obtain an HPA from the Washington Department of Fish and Wildlife is waived for forest practices conducted in or across nonfish bearing waters under an approved forest practices application issued by the Department of Natural Resources (DNR). Applicants must have an approved forest practices application for this exemption to apply. There are no changes to the reporting, record-keeping or other compliance measures required under the forest practices rules.

2. Professional Services Required for Compliance: None.

3. Costs of Compliance, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: None.

4. Will Compliance Cause Businesses to Lose Sales or Revenue? No.

5. Comparison of Costs for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rule: No additional costs.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses: No additional costs.

7. Description of How the Agency Will Involve Small Business in the Development of the Rule: This rule was developed in cooperation with representatives for private forest landowners and other interested parties. It continues implementation of the forests and fish agreement, which was the result of eighteen months of study and negotiation to develop changes to forest practices rules for the protection of riparian and aquatic resources on private timberland. Private forest landowners were a key participant in developing the final forests and fish agreement.

8. List of Industries Required to Comply with this Rule: Private timber landowners and operators.

A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155.

RCW 34.05.328 applies to this rule adoption.


SIGNIFICANT LEGISLATIVE RULES ANALYSIS


1. Clearly State in Detail the General Goals and Specific Objectives of the Statute That the Rule Implements: RCW 77.55.100 requires that work that will use, divert, obstruct or change the natural flow or bed of any of the salt or fresh waters of the state must be approved by the Department of Fish and Wildlife (WDFW) as to the adequacy of the means proposed for the protection of fish life prior to conducting the work.

RCW 77.12.047 authorizes the state Fish and Wildlife Commission (commission) to adopt rules necessary to carry out Title 77 RCW and the purposes and duties of WDFW.

RCW 76.09.030(2) states that the WDFW position on the Forest Practices Board (board) may be terminated if substantial progress is not made toward integrating the laws, rules and programs governing forest practices, chapter 76.09 RCW, and the laws, rules, and programs covering hydraulic projects, chapter 77.55 RCW. Substantial progress shall include recommendations to the legislature for closer integration of the existing rule-making authorities of the board and WDFW, and closer integration of forest practices and hydraulics permitting processes, including exploring the potential for consolidated permitting process. These recommendations shall be designed to resolve problems currently associated with the existing dual regulatory and permitting processes.

2. Determine that the Rule is Needed to Achieve the General Goals and Specific Objectives Stated Above and Analyze Alternatives to Rule Making and the Consequences of Not Adopting the Rule: The proposed rule addresses the objectives of RCW 76.09.030(2) to more closely integrate the forest practices permitting process of the Department of Natural Resources (DNR) and the hydraulics permitting process of WDFW.

This integration of HPA and FPA was envisioned in the forests and fish agreement, which outlined changes to forest practices rules to protect riparian and aquatic resources on private forestland. Pursuant to chapter 76.09 RCW, the board has adopted regulations that include, among other items, fish protection measures normally included in HPAs for projects in nonfish bearing streams. WDFW has determined that the fish protection measures in chapters 222-16, 222-24, and 222-30 WAC, adopted by the board on May 17, 2001, are consistent with the goals for the protection of fish life in chapter 77.55 RCW. Therefore, this proposed rule waives the requirement for an HPA for forest practices conducted in or across nonfish bearing waters under an approved FPA issued by DNR. This action will achieve equal or better protection of fish life while reducing unnecessary permitting requirements for applicants. Alternatives to rule making that meet the objective of RCW 76.09.030(2) to integrate the existing forest practices and hydraulics permitting processes include administrative or statutory changes. The HPA requirement is established by statute and implemented according to rules promulgated by WDFW. Therefore, the WDFW director does not have administrative authority to waive the requirement for HPAs for certain categories of activities. Statutory changes were determined to be excessive and unnecessary given the scope of the proposed integration of HPAs and FPAs on nonfish bearing streams. Rule making by the commission was determined to be the appropriate course of action. Several regulatory options were considered, but the development of a rule creating an exemption from the HPA requirement for forest practices in or across nonfish bearing streams subject to an approved forest practices application was determined to be the most efficient way to achieve permit integration without the loss of any resource protection.

Successful implementation of this rule is dependent on close coordination between WDFW and DNR. A memorandum of agreement (MOA) is being developed between the two agencies to address specific topics related to implementation of this rule including training, monitoring, enforcement and reporting.

The consequences of not adopting this rule are that WDFW would not meet the terms committed to in the Forests and Fish Agreement and would not further the mandate set forth in RCW 76.09.030(2). Additionally, WDFW would lose the opportunity to improve resource protection for fish life by redirecting limited resources to projects with direct impacts on fish bearing streams, and to eliminate duplicative permits by streamlining the permit process for forest practices in nonfish bearing streams.

3. Determine that the Probable Benefits of the Rule are Greater Than Its Probable Costs, Taking Into Account Both the Qualitative and Quantitative Benefits and Costs and the Specific Directives of the Statute Being Implemented: The probable benefits of the proposed rule include the following: Integration of forest practices and hydraulics permitting processes for forest practices activities in or across nonfish bearing streams; reduction of unnecessary and duplicative permitting requirements for applicants; equal or improved resource protection for fish and fish habitat; increased HPA program efficiencies so that additional focus can be placed on activities with direct impacts in fish-bearing streams; and continued implementation of the forests and fish agreement.

In addition, under the terms of the MOA being developed between WDFW and DNR to implement this rule, it is the intent of the agencies to jointly develop training and monitoring plans, coordinate enforcement, and conduct periodic performance reviews. The probable benefits resulting from the MOA include: Performance monitoring; improved compliance monitoring; annual evaluation of monitoring information; and preparation of periodic status reports.

There are no additional costs to applicants associated with this proposed rule, and there may, in fact, be the potential for some savings through permit streamlining.

One potential cost to WDFW is that the agency will no longer be able to require or enforce conditions on individual forest practices projects on nonfish bearing streams. However, this has been addressed through the increased level of resource protection provided under the forest practices rules, the increased efficiencies to the HPA program allowing WDFW to focus on higher priority projects in fish bearing streams, and the cross-agency coordination with DNR outlined in the terms of the MOA to implement this rule. If the proposed rule is not implemented as currently envisioned, the commission has the authority to amend or rescind this rule in the future.

In summary, this proposed rule meets the objectives of chapter 77.55 RCW and RCW 76.09.030(2) with a large number of benefits and minimal costs.

4. Determine, After Considering Alternative Versions of the Rule and the Analysis Required Under #2 and #3 Above that the Rule Being Adopted is the Least Burdensome Alternative for Those Required to Comply With It that Will Achieve the General Goals and Specific Objectives Stated Under #1 Above: The proposed final version of the rule is considered to be the least burdensome alternative because it was developed in cooperation with representatives for private forest landowners and other interested parties. It continues implementation of the forests and fish agreement, which was the result of eighteen months of study and negotiation to develop changes to forest practices rules for the protection of riparian and aquatic resources on private timberland. It will achieve equal or better protection of fish life than the status quo due to increased consistency in the application of protective measures for fish and their habitat under the forest practices rules, and the ability for WDFW to redirect limited resources to higher priority projects in fish bearing waters. At the same time it will reduce unnecessary permitting for applicants.

5. Determine That the Rule Does Not Require Those to Whom it Applies to Take an Action That Violates Requirements of Another Federal or State Law: The rule does not require those to whom it applies to take any action beyond what is currently required, and therefor could not possible require any action that would result in a violation of state or federal law. In fact, it exempts certain forest practices permittees from the requirement of obtaining a separate hydraulic project approval. As the requirement for a hydraulic project approval is a state law, no violation of federal law could possibly result from the implementation of this rule.

6. Determine That the Rule Does Not Impose More Stringent Performance Requirements on Private Entities Than On Public Entities Unless Required To Do So by Federal or State Law: The rule has the same requirements for all entities conducting forest practices under the forest practices rules.

7. Determine if the Rule Differs From Any Federal Regulation or Statute Applicable to the Same Activity or Subject Matter and, if so, Determine That the Difference is Justified by the Following:

1) A state statute that explicitly allows the agency to differ from federal standards; or

2) Substantial evidence that the difference is necessary to achieve the general goals and specific objectives stated under #1 above.

See answer to #5, above.

8. Coordinate the Rule, to the Maximum Extent Practicable, With Other Federal, State, and Local Laws Applicable to the Same Activity or Subject Matter: The rule was developed in consultation with DNR, which is responsible for the protection of public resources, which includes fish and wildlife, and regulation of forest practices under the Forest Practices Act and rules. An MOA is being developed between WDFW and DNR to address specific topics related to the implementation of this rule, including training, monitoring, reporting and enforcement.


RULE IMPLEMENTATION PLAN


The following describes how WDFW intends to:

1. Implement and enforce the rule, including a description of the resources the agency intends to use;

2. Inform and educate affected persons about the rule;

3. Promote and assist voluntary compliance;

4. Evaluate whether the rule achieves the purposes for which it was adopted, including, to the maximum extent practicable, the use of interim milestones to assess progress and the use of objectively measurable outcomes.

1. Implementation and Enforcement of the Rule: The MOA being developed between WDFW and DNR will include requirements for the agencies to 1) jointly develop and implement a training program on the HPA/FPA integration and protective measures for forest practices activities affecting nonfish bearing streams, 2) jointly develop and implement a monitoring plan for compliance and performance of the HPA/FPA integration, 3) coordinate enforcement activities, and 4) meet annually to review the performance of the HPA/FPA integration. Additionally, WDFW will prepare a status report on this rule implementation every two years for presentation to the commission.

2. Information and Education: The affected public will be informed and educated about the rule through the training programs as described in #1 above. Also, following rule adoption, a press release will be prepared to inform the general public.

3. Promotion of Voluntary Compliance: Voluntary compliance with the rule will be promoted through the training programs as described in #1 above. Additionally, applicants contacting WDFW for an HPA for forest practices in nonfish bearing waters will be notified that this permit is no longer required if they operate with an approved forest practices application issued by DNR.

4. Rule Evaluation: Information obtained from the monitoring programs described in #1 will be reviewed by WDFW and DNR at annual meetings to evaluate the compliance and performance of the HPA/FPA integration. This information will be analyzed to evaluate the successes and challenges of this rule implementation, and recommendations for modifications will be developed as necessary. In addition, WDFW will prepare a status report on this rule implementation every two years for presentation to the commission.

Hearing Location: Natural Resources Building, 1111 Washington Street, Olympia, WA, on June 4-5, 2004, begins 8:00 a.m. on June 4, 2004.

Assistance for Persons with Disabilities: Contact Karol McFarlane by May 24, 2004, TDD (360) 902-2533 or (360) 902-2267.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by May 31, 2004.

Date of Intended Adoption: June 4, 2004.

April 5, 2004

Evan Jacoby

Rules Coordinator

OTS-7070.1


AMENDATORY SECTION(Amending Order 97-84, filed 6/4/97, effective 7/5/97)

WAC 220-110-035   Miscellaneous hydraulic projects -- Permit requirements and exemptions.   (1) Operators of mechanical or hydraulic clam harvesters shall be required to obtain an HPA and comply with provisions of WAC 220-52-018, and shall obtain and comply with the provisions of the department's permit to operate a clam harvesting machine.

(2) An activity conducted solely for the removal or control of spartina does not require an HPA. An activity conducted solely for the removal or control of purple loosestrife and which is performed with hand-held tools, hand-held equipment, or equipment carried by a person when used does not require an HPA. Any other activity conducted solely for the removal or control of aquatic noxious weeds or aquatic beneficial plants shall require either a copy of the current Aquatic Plants and Fish pamphlet HPA available from the department or an individual HPA.

(3) The installation, by hand or hand-held tools, of small scientific markers, oyster stakes, boundary markers, or property line markers does not require an HPA.

(4) Driving a vehicle or operating equipment on or across an established ford does not require an HPA. However, ford repair with equipment or construction work waterward of the ordinary high water lines requires an HPA. Driving a vehicle or operating equipment on or across wetted stream beds at areas other than established fords requires an HPA. HPAs for new fords issued subsequent to January 1995 shall require that the entry and exit points of the ford not exceed one hundred feet upstream or downstream of each other.

(5) A person conducting a remedial action under a consent decree, order, or agreed order, pursuant to chapter 70.105D RCW, and the department of ecology when it conducts a remedial action, are exempt from the procedural requirements of the Hydraulic Code. Compliance with the substantive provisions of the Hydraulic Code is required.

(6) The technical and special provisions of an individual or a pamphlet HPA shall be followed by the permit holder, equipment operator(s), and other individuals conducting the project.

(7) The legislature expressed the intent in RCW 76.09.030(2) for closer integration of the forest practices and hydraulics permitting processes. Pursuant to chapter 76.09 RCW, the forest practices board has adopted rules that include fish protection measures normally included in hydraulic project approvals for projects in nonfish bearing waters. Based on the fish protection measures contained in chapters 222-16, 222-24 and 222-30 WAC, forest practices, as defined in chapter 76.09 RCW, conducted under an approved forest practices application or notification issued by the department of natural resources, and conducted in or across type Np or Ns waters as defined in WAC 222-16-030 (Type 4 or Type 5 Waters, respectively, as defined in WAC 222-16-031), do not require an HPA.

[Statutory Authority: RCW 75.08.080. 97-13-001 (Order 97-84), 220-110-035, filed 6/4/97, effective 7/5/97; 94-23-058 (Order 94-160), 220-110-035, filed 11/14/94, effective 12/15/94.]

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