PROPOSED RULES
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: Assisting small forest landowners with forest road maintenance and abandonment planning and implementation elements of the forest practices rules, Title 222 WAC.
Purpose: Adopt emergency rules to implement legislative directed changes in 2SHB 1095.
Other Identifying Information: The bill limits the impact on small forest landowners of forest road maintenance and abandonment planning requirements, and directs the Forest Practices Board to adopt emergency rules under RCW 34.05.090 by October 31, 2003, that are to remain in effect until permanent rules can be adopted.
Statutory Authority for Adoption: RCW 76.09.040 and chapter 34.05 RCW.
Statute Being Implemented: 2SHB 1095, chapter 311, Laws of 2003.
Summary: The rule changes will implement 2SHB 1095 which in part amends chapter 76.09 RCW, "Forest Practices." The statutory amendments make it necessary to amend Title 222 WAC by:
| • | Defining certain terms as they affect road maintenance and abandonment planning and implementation; |
| • | Altering road maintenance and abandonment plan requirements for small forest landowners, including the creation of a simplified checklist plan; |
| • | Exempting small forest landowners' checklist road maintenance and abandonment plans from continuing obligation requirements; and |
| • | Establishing a cost share program to provide financial assistance to small forest landowners for the removal of fish blockages. |
Reasons Supporting Proposal: The rule changes are proposed to make the forest practices rules consistent with 2SHB 1095.
Name of Agency Personnel Responsible for Drafting: Jed Herman, 1111 Washington Street S.E., Olympia, (360) 902-1684; Implementation and Enforcement: Lenny Young, 1111 Washington Street S.E., Olympia, (360) 902-1744.
Name of Proponent: Forest Practices Board, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: This rule limits the impacts on small forest landowners of forest road maintenance and abandonment planning requirements of the forest practices rules (Title 222 WAC). It implements 2003 legislation, 2SHB 1095, which in part amends chapter 76.09 RCW.
Proposal Changes the Following Existing Rules:
Chapter 222-16 WAC, Definitions.
| • | A definition for "fish passage barrier" is added. |
| • | Definitions of "forest landowner" and "forest road" are expanded for small forest landowner purposes. |
| • | Application requirements and approval conditions for small forest landowners are added. |
| • | Language is added to exempt small forest landowners from continuing obligations upon sale or transfer of their forest lands. |
| • | Language is added to provide for a state led cost share program to assist small forest landowners with costs of removing or repairing fish passage barriers. |
| • | An obsolete ownership threshold for planning requirements is deleted. |
| • | Language is added to alter road maintenance and abandonment plan requirements for small forest landowners, including a simplified checklist plan. |
No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule making does not impose additional costs on businesses and alleviates some costs for small forestry businesses.
RCW 34.05.328 does not apply to this rule adoption. The content of these amendments to Title 222 WAC are dictated by statute, therefore are exempt from analysis described in RCW 34.05.328.
Hearing Location: Red Lion Hotel, 510 Kelso Drive, Kelso, WA, on September 25, 2003, at 4:00 p.m.; and at Community College of Spokane, 985 South Elm Street, Colville, WA, on September 29, 2003, at 4:00 p.m.
Assistance for Persons with Disabilities: Contact Forest Practices Division at (360) 902-1400 by September 12, 2003, TDD (360) 902-1125.
Submit Written Comments to: Patricia Anderson, Department of Natural Resources, Forest Practices Division, 1111 Washington Street S.E., P.O. Box 47012, Olympia, WA 98504-7012, fax (360) 902-1428, by September 29, 2003.
Date of Intended Adoption: October 15, 2003.
August 18, 2003
Pat McElroy
Chair
OTS-6584.1
AMENDATORY SECTION(Amending WSR 01-12-042, filed 5/30/01,
effective 7/1/01)
WAC 222-16-010
General definitions.*
Unless otherwise
required by context, as used in these rules:
"Act" means the Forest Practices Act, chapter 76.09 RCW.
"Affected Indian tribe" means any federally recognized Indian tribe that requests in writing from the department information on forest practices applications and notification filed on specified areas.
"Alluvial fan" see "sensitive sites" definition.
"Appeals board" means the forest practices appeals board established in the act.
"Aquatic resources" means water quality, fish, the Columbia torrent salamander (Rhyacotriton kezeri), the Cascade torrent salamander (Rhyacotriton cascadae), the Olympic torrent salamander (Rhyacotriton olympian), the Dunn's salamander (Plethodon dunni), the Van Dyke's salamander (Plethodon vandyke), the Tailed frog (Ascaphus truei) and their respective habitats.
"Area of resource sensitivity" means areas identified in accordance with WAC 222-22-050 (2)(d) or 222-22-060(2).
"Bankfull depth" means the average vertical distance between the channel bed and the estimated water surface elevation required to completely fill the channel to a point above which water would enter the floodplain or intersect a terrace or hillslope. In cases where multiple channels exist, the bankfull depth is the average depth of all channels along the cross-section. (See board manual section 2.)
"Bankfull width" means:
(a) For streams - the measurement of the lateral extent of the water surface elevation perpendicular to the channel at bankfull depth. In cases where multiple channels exist, bankfull width is the sum of the individual channel widths along the cross-section (see board manual section 2).
(b) For lakes, ponds, and impoundments - line of mean high water.
(c) For tidal water - line of mean high tide.
(d) For periodically inundated areas of associated wetlands - line of periodic inundation, which will be found by examining the edge of inundation to ascertain where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland.
"Basal area" means the area in square feet of the cross section of a tree bole measured at 4 1/2 feet above the ground.
"Bedrock hollows" (colluvium-filled bedrock hollows, or hollows; also referred to as zero-order basins, swales, or bedrock depressions) means landforms that are commonly spoon-shaped areas of convergent topography within unchannelled valleys on hillslopes. (See board manual section 16 for identification criteria.)
"Board" means the forest practices board established by the act.
"Bog" means wetlands which have the following characteristics: Hydric organic soils (peat and/or muck) typically 16 inches or more in depth (except over bedrock or hardpan); and vegetation such as sphagnum moss, labrador tea, bog laurel, bog rosemary, sundews, and sedges; bogs may have an overstory of spruce, western Hemlock, lodgepole pine, cedar, whitepine, crabapple, or aspen, and may be associated with open water. This includes nutrient-poor fens. (See board manual section 8.)
"Borrow pit" shall mean an excavation site outside the limits of construction to provide material necessary to that construction, such as fill material for the embankments.
"Bull trout habitat overlay" means those portions of Eastern Washington streams containing bull trout habitat as identified on the department of fish and wildlife's bull trout map. Prior to the development of a bull trout field protocol and the habitat-based predictive model, the "bull trout habitat overlay" map may be modified to allow for locally-based corrections using current data, field knowledge, and best professional judgment. A landowner may meet with the departments of natural resources, fish and wildlife and, in consultation with affected tribes and federal biologists, determine whether certain stream reaches have habitat conditions that are unsuitable for supporting bull trout. If such a determination is mutually agreed upon, documentation submitted to the department will result in the applicable stream reaches no longer being included within the definition of bull trout habitat overlay. Conversely, if suitable bull trout habitat is discovered outside the current mapped range, those waters will be included within the definition of "bull trout habitat overlay" by a similar process.
Place illustration here. |
"Chemicals" means substances applied to forest lands or timber including pesticides, fertilizers, and other forest chemicals.
"Clearcut" means a harvest method in which the entire stand of trees is removed in one timber harvesting operation. Except as provided in WAC 222-30-110, an area remains clearcut until:
It meets the minimum stocking requirements under WAC 222-34-010(2) or 222-34-020(2); and
The largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.
"Columbia River Gorge National Scenic Area or CRGNSA" means the area established pursuant to the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544b(a).
"CRGNSA special management area" means the areas designated in the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544b(b) or revised pursuant to 16 U.S.C. § 544b(c). For purposes of this rule, the special management area shall not include any parcels excluded by 16 U.S.C. § 544f(o).
"CRGNSA special management area guidelines" means the guidelines and land use designations for forest practices developed pursuant to 16 U.S.C. § 544f contained in the CRGNSA management plan developed pursuant to 15 U.S.C. § 544d.
"Commercial tree species" means any species which is capable of producing a merchantable stand of timber on the particular site, or which is being grown as part of a Christmas tree or ornamental tree-growing operation.
"Completion of harvest" means the latest of:
Completion of removal of timber from the portions of forest lands harvested in the smallest logical unit that will not be disturbed by continued logging or an approved slash disposal plan for adjacent areas; or
Scheduled completion of any slash disposal operations where the department and the applicant agree within 6 months of completion of yarding that slash disposal is necessary or desirable to facilitate reforestation and agree to a time schedule for such slash disposal; or
Scheduled completion of any site preparation or rehabilitation of adjoining lands approved at the time of approval of the application or receipt of a notification: Provided, That delay of reforestation under this paragraph is permitted only to the extent reforestation would prevent or unreasonably hinder such site preparation or rehabilitation of adjoining lands.
"Constructed wetlands" means those wetlands voluntarily developed by the landowner. Constructed wetlands do not include wetlands created, restored, or enhanced as part of a mitigation procedure or wetlands inadvertently created as a result of current or past practices including, but not limited to: Road construction, landing construction, railroad construction, or surface mining.
"Contamination" means introducing into the atmosphere, soil, or water, sufficient quantities of substances as may be injurious to public health, safety or welfare, or to domestic, commercial, industrial, agriculture or recreational uses, or to livestock, wildlife, fish or other aquatic life.
"Convergent headwalls" (or headwalls) means teardrop-shaped landforms, broad at the ridgetop and terminating where headwaters converge into a single channel; they are broadly concave both longitudinally and across the slope, but may contain sharp ridges separating the headwater channels. (See board manual section 16 for identification criteria.)
"Conversion option harvest plan" means a voluntary plan developed by the landowner and approved by the local government entity indicating the limits of harvest areas, road locations, and open space.
"Conversion to a use other than commercial timber operation" shall mean a bona fide conversion to an active use which is incompatible with timber growing.
"Cooperative habitat enhancement agreement (CHEA)" see WAC 222-16-105.
"Critical habitat (federal)" means the habitat of any threatened or endangered species designated as critical habitat by the United States Secretary of the Interior or Commerce under Sections 3 (5)(A) and 4 (a)(3) of the Federal Endangered Species Act.
"Critical nesting season" means for marbled murrelets - April 1 to August 31.
"Critical habitat (state)" means those habitats designated by the board in accordance with WAC 222-16-080.
"Cultural resources" means archaeological and historic sites and artifacts and traditional religious, ceremonial and social uses and activities of affected Indian tribes.
"Cumulative effects" means the changes to the environment caused by the interaction of natural ecosystem processes with the effects of two or more forest practices.
"Daily peak activity" means for marbled murrelets - one hour before official sunrise to two hours after official sunrise and one hour before official sunset to one hour after official sunset.
"Debris" means woody vegetative residue less than 3 cubic feet in size resulting from forest practice activities which would reasonably be expected to cause significant damage to a public resource.
"Deep-seated landslides" means landslides in which most of the area of the slide plane or zone lies below the maximum rooting depth of forest trees, to depths of tens to hundreds of feet. (See board manual section 16 for identification criteria.)
"Demographic support" means providing sufficient suitable spotted owl habitat within the SOSEA to maintain the viability of northern spotted owl sites identified as necessary to meet the SOSEA goals.
"Department" means the department of natural resources.
"Desired future condition (DFC)" is a reference point on a pathway and not an endpoint for stands. DFC means the stand conditions of a mature riparian forest at 140 years of age, the midpoint between 80 and 200 years. Where basal area is the only stand attribute used to describe 140-year old stands, these are referred to as the "Target Basal Area."
"Diameter at breast height (dbh)" means the diameter of a tree at 4 1/2 feet above the ground measured from the uphill side.
"Dispersal habitat" see WAC 222-16-085(2).
"Dispersal support" means providing sufficient dispersal habitat for the interchange of northern spotted owls within or across the SOSEA, as necessary to meet SOSEA goals. Dispersal support is provided by a landscape consisting of stands of dispersal habitat interspersed with areas of higher quality habitat, such as suitable spotted owl habitat found within RMZs, WMZs or other required and voluntary leave areas.
"Drainage structure" means a construction technique or feature that is built to relieve surface runoff and/or intercepted ground water from roadside ditches to prevent excessive buildup in water volume and velocity. A drainage structure is not intended to carry any typed water. Drainage structures include structures such as: Cross drains, relief culverts, ditch diversions, water bars, or other such structures demonstrated to be equally effective.
"Eastern Washington" means the geographic area in Washington east of the crest of the Cascade Mountains from the international border to the top of Mt. Adams, then east of the ridge line dividing the White Salmon River drainage from the Lewis River drainage and east of the ridge line dividing the Little White Salmon River drainage from the Wind River drainage to the Washington-Oregon state line.
Place illustration here. |
"Eastern Washington timber habitat types" means elevation ranges associated with tree species assigned for the purpose of riparian management according to the following:
| Timber Habitat Types | Elevation Ranges |
| ponderosa pine | 0 - 2500 feet |
| mixed conifer | 2501 - 5000 feet |
| high elevation | above 5000 feet |
"End hauling" means the removal and transportation of excavated material, pit or quarry overburden, or landing or road cut material from the excavation site to a deposit site not adjacent to the point of removal.
"Equipment limitation zone" means a 30-foot wide zone measured horizontally from the outer edge of the bankfull width of a Type Np or Ns Water. It applies to all perennial and seasonal nonfish bearing streams.
"Erodible soils" means those soils that, when exposed or displaced by a forest practice operation, would be readily moved by water.
"Even-aged harvest methods" means the following harvest methods:
Clearcuts;
Seed tree harvests in which twenty or fewer trees per acre remain after harvest;
Shelterwood regeneration harvests in which twenty or fewer trees per acre remain after harvest;
Group or strip shelterwood harvests creating openings wider than two tree heights, based on dominant trees;
Shelterwood removal harvests which leave fewer than one hundred fifty trees per acre which are at least five years old or four feet in average height;
Partial cutting in which fewer than fifty trees per acre remain after harvest;
Overstory removal when more than five thousand board feet per acre is removed and fewer than fifty trees per acre at least ten feet in height remain after harvest; and
Other harvesting methods designed to manage for multiple age classes in which six or fewer trees per acre remain after harvest.
Except as provided above for shelterwood removal harvests and overstory removal, trees counted as remaining after harvest shall be at least ten inches in diameter at breast height and have at least the top one-third of the stem supporting green, live crowns. Except as provided in WAC 222-30-110, an area remains harvested by even-aged methods until it meets the minimum stocking requirements under WAC 222-34-010(2) or 222-34-020(2) and the largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.
"Fen" means wetlands which have the following characteristics: Peat soils 16 inches or more in depth (except over bedrock); and vegetation such as certain sedges, hardstem bulrush and cattails; fens may have an overstory of spruce and may be associated with open water.
"Fertilizers" means any substance or any combination or mixture of substances used principally as a source of plant food or soil amendment.
"Fill" means the placement of earth material or aggregate for road or landing construction or other similar activities.
"Fish" means for purposes of these rules, species of the vertebrate taxonomic groups of Cephalospidomorphi and Osteichthyes.
"Fish habitat" means habitat, which is used by fish at any life stage at any time of the year including potential habitat likely to be used by fish, which could be recovered by restoration or management and includes off-channel habitat.
"Fish passage barrier" means any artificial instream structure that impedes the free passage of fish.
"Flood level - 100 year." Is a calculated flood event flow based on an engineering computation of flood magnitude that has a 1 percent chance of occurring in any given year. For purposes of field interpretation, landowners may use the following methods:
Flow information from gauging stations;
Field estimate of water level based on guidance for "Determining the 100-Year Flood Level" in the forest practices board manual section 2.
The 100-year flood level shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or under license from the federal government, the state, or a political subdivision of the state.
"Forest land" means all land which is capable of supporting a merchantable stand of timber and is not being actively used for a use which is incompatible with timber growing. For road maintenance and abandonment planning and implementation for small forest landowners, "forest land" excludes any of the following:
(a) Residential home sites. A residential home site may be up to five acres in size, and must have a fixed structure in use as a residence;
(b) Cropfields, orchards, vineyards, pastures, feedlots, fish pens, and the land on which appurtenances necessary to the production, preparation, or sale of crops, fruit, dairy products, fish, and livestock exist.
"Forest landowner" shall mean any person in actual
control of forest land, whether such control is based either
on legal or equitable title, or on any other interest
entitling the holder to sell or otherwise dispose of any or
all of the timber on such land in any manner((: Provided,
That)). However, any lessee or other person in possession of
forest land without legal or equitable title to such land
shall be excluded from the definition of "forest landowner"
unless such lessee or other person has the right to sell or
otherwise dispose of any or all of the timber located on such
forest land.
(1) "Large forest landowner," for purposes of road maintenance and abandonment planning, means any forest landowner who is not a small forest landowner.
(2) "Small forest landowner" is a forest landowner who at the time of submitting a forest practices application or notification:
(a) Has harvested from his or her own forest lands in Washington state no more than an average timber volume of two million board feet per year during the three years prior to submitting the forest practices application or notification to the department; and
(b) Certifies that he or she does not expect to harvest from his or her own forest lands in the state more than an average timber volume of two million board feet per year during the ten years following the submission of a forest practices application or notification to the department.
(c) A landowner who exceeded the harvest threshold as described above, or expects to exceed the harvest limits during any of the following ten years, will still be considered a "small forest landowner" if:
(i) He or she establishes to the department's reasonable satisfaction that the harvest limits were or will be exceeded in order to raise funds to pay estate taxes; or
(ii) There is an equally compelling and unexpected obligation, such as for a court-ordered judgment or for extraordinary medical expenses.
(d) For the purposes of the forestry riparian easement program, "small forest landowner" is defined in WAC 222-21-010(13).
"Forest practice" means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:
Road and trail construction;
Harvesting, final and intermediate;
Precommercial thinning;
Reforestation;
Fertilization;
Prevention and suppression of diseases and insects;
Salvage of trees; and
Brush control.
"Forest practice" shall not include: Forest species seed orchard operations and intensive forest nursery operations; or preparatory work such as tree marking, surveying and road flagging; or removal or harvest of incidental vegetation from forest lands such as berries, ferns, greenery, mistletoe, herbs, mushrooms, and other products which cannot normally be expected to result in damage to forest soils, timber or public resources.
"Forest road" means ways, lanes, roads, or driveways on forest land used since 1974 for forest practices or forest management activities such as fire control. "Forest roads" does not include skid trails, highways, or county roads except where the county is a forest landowner or operator. "Forest road," as it applies to road maintenance and abandonment planning for small forest landowners, means a road or road segment that crosses forest lands owned by the small forest landowner, but excludes access roads to residential home sites not used as a part of a current forest practice involving harvest or salvage of trees.
"Forest trees" excludes trees cultivated by agricultural methods in growing cycles shorter than ten years: Provided, That Christmas trees are forest trees and: Provided further, That this exclusion applies only to trees planted on land that was not in forest use immediately before the trees were planted and before the land was prepared for planting the trees.
"Full bench road" means a road constructed on a side hill without using any of the material removed from the hillside as a part of the road. This construction technique is usually used on steep or unstable slopes.
"Green recruitment trees" means those trees left after harvest for the purpose of becoming future wildlife reserve trees under WAC 222-30-020(11).
"Ground water recharge areas for glacial deep-seated slides" means the area upgradient that can contribute water to the landslide, assuming that there is an impermeable perching layer in or under a deep-seated landslide in glacial deposits. (See board manual section 16 for identification criteria.)
"Headwater spring" means a permanent spring at the head of a perennial channel. Where a headwater spring can be found, it will coincide with the uppermost extent of Type Np Water.
"Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any tree, bush, weed or algae and other aquatic weeds.
"Historic site" includes:
Sites, areas and structures or other evidence of human activities illustrative of the origins, evolution and development of the nation, state or locality; or
Places associated with a personality important in history; or
Places where significant historical events are known to have occurred even though no physical evidence of the event remains.
"Horizontal distance" means the distance between two points measured at a 0% slope.
"Hyporheic" means an area adjacent to and below channels where interstitial water is exchanged with channel water and water movement is mainly in the downstream direction.
"Identified watershed processes" means the following components of natural ecological processes that may in some instances be altered by forest practices in a watershed:
Mass wasting;
Surface and road erosion;
Seasonal flows including hydrologic peak and low flows and annual yields (volume and timing);
Large organic debris;
Shading; and
Stream bank and bed stability.
"Inner gorges" means canyons created by a combination of the downcutting action of a stream and mass movement on the slope walls; they commonly show evidence of recent movement, such as obvious landslides, vertical tracks of disturbance vegetation, or areas that are concave in contour and/or profile. (See board manual section 16 for identification criteria.)
"Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect, other arthropods or mollusk pests.
"Interdisciplinary team" (ID Team) means a group of varying size comprised of individuals having specialized expertise, assembled by the department to respond to technical questions associated with a proposed forest practice activity.
"Islands" means any island surrounded by salt water in Kitsap, Mason, Jefferson, Pierce, King, Snohomish, Skagit, Whatcom, Island, or San Juan counties.
"Limits of construction" means the area occupied by the completed roadway or landing, including the cut bank, fill slope, and the area cleared for the purpose of constructing the roadway or landing.
"Load bearing portion" means that part of the road, landing, etc., which is supportive soil, earth, rock or other material directly below the working surface and only the associated earth structure necessary for support.
"Local government entity" means the governments of counties and the governments of cities and towns as defined in chapter 35.01 RCW.
"Low impact harvest" means use of any logging equipment, methods, or systems that minimize compaction or disturbance of soils and vegetation during the yarding process. The department shall determine such equipment, methods or systems in consultation with the department of ecology.
"Marbled murrelet detection area" means an area of land associated with a visual or audible detection of a marbled murrelet, made by a qualified surveyor which is documented and recorded in the department of fish and wildlife data base. The marbled murrelet detection area shall be comprised of the section of land in which the marbled murrelet detection was made and the eight sections of land immediately adjacent to that section.
| Place illustration here. |
"Marbled murrelet nesting platform" means any horizontal tree structure such as a limb, an area where a limb branches, a surface created by multiple leaders, a deformity, or a debris/moss platform or stick nest equal to or greater than 7 inches in diameter including associated moss if present, that is 50 feet or more above the ground in trees 32 inches dbh and greater (generally over 90 years of age) and is capable of supporting nesting by marbled murrelets.
"Median home range circle" means a circle, with a specified radius, centered on a spotted owl site center. The radius for the median home range circle in the Hoh-Clearwater/Coastal Link SOSEA is 2.7 miles; for all other SOSEAs the radius is 1.8 miles.
"Merchantable stand of timber" means a stand of trees that will yield logs and/or fiber:
Suitable in size and quality for the production of lumber, plywood, pulp or other forest products;
Of sufficient value at least to cover all the costs of harvest and transportation to available markets.
"Multiyear permit" means a permit to conduct forest practices which is effective for longer than two years but no longer than five years.
"Northern spotted owl site center" means the location of status 1, 2 or 3 northern spotted owls based on the following definitions:
| Status 1: | Pair or reproductive - a male and female heard and/or observed in close proximity to each other on the same visit, a female detected on a nest, or one or both adults observed with young. |
| Status 2: | Two birds, pair status unknown - the presence or response of two birds of opposite sex where pair status cannot be determined and where at least one member meets the resident territorial single requirements. |
| Status 3: | Resident territorial single - the presence or response of a single owl within the same general area on three or more occasions within a breeding season with no response by an owl of the opposite sex after a complete survey; or three or more responses over several years (i.e., two responses in year one and one response in year two, for the same general area). |
"Notice to comply" means a notice issued by the department pursuant to RCW 76.09.090 of the act and may require initiation and/or completion of action necessary to prevent, correct and/or compensate for material damage to public resources which resulted from forest practices.
"Occupied marbled murrelet site" means:
(1) A contiguous area of suitable marbled murrelet habitat where at least one of the following marbled murrelet behaviors or conditions occur:
(a) A nest is located; or
(b) Downy chicks or eggs or egg shells are found; or
(c) Marbled murrelets are detected flying below, through, into or out of the forest canopy; or
(d) Birds calling from a stationary location within the area; or
(e) Birds circling above a timber stand within one tree height of the top of the canopy; or
(2) A contiguous forested area, which does not meet the definition of suitable marbled murrelet habitat, in which any of the behaviors or conditions listed above has been documented by the department of fish and wildlife and which is distinguishable from the adjacent forest based on vegetative characteristics important to nesting marbled murrelets.
(3) For sites defined in (1) above, the outer perimeter of the occupied site shall be presumed to be the closer, measured from the point where the observed behaviors or conditions listed in (1) above occurred, of the following:
(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or
(b) The beginning of any gap greater than 300 feet wide lacking one or more of the vegetative characteristics listed under "suitable marbled murrelet habitat"; or
(c) The beginning of any narrow area of "suitable marbled murrelet habitat" less than 300 feet in width and more than 300 feet in length.
(4) For sites defined under (2) above, the outer perimeter of the occupied site shall be presumed to be the closer, measured from the point where the observed behaviors or conditions listed in (1) above occurred, of the following:
(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or
(b) The beginning of any gap greater than 300 feet wide lacking one or more of the distinguishing vegetative characteristics important to murrelets; or
(c) The beginning of any narrow area of suitable marbled murrelet habitat, comparable to the area where the observed behaviors or conditions listed in (1) above occurred, less than 300 feet in width and more than 300 feet in length.
(5) In determining the existence, location and status of occupied marbled murrelet sites, the department shall consult with the department of fish and wildlife and use only those sites documented in substantial compliance with guidelines or protocols and quality control methods established by and available from the department of fish and wildlife.
"Old forest habitat" see WAC 222-16-085 (1)(a).
"Operator" shall mean any person engaging in forest practices except an employee with wages as his/her sole compensation.
"Ordinary high-water mark" means the mark on the shores of all waters, which will be found by examining the beds and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation: Provided, That in any area where the ordinary high-water mark cannot be found, the ordinary high-water mark adjoining saltwater shall be the line of mean high tide and the ordinary high-water mark adjoining freshwater shall be the line of mean high-water.
"Other forest chemicals" means fire retardants when used to control burning (other than water), nontoxic repellents, oil, dust-control agents (other than water), salt, and other chemicals used in forest management, except pesticides and fertilizers, that may present hazards to the environment.
"Park" means any park included on the parks register maintained by the department pursuant to WAC 222-20-100(2). Developed park recreation area means any park area developed for high density outdoor recreation use.
"Partial cutting" means the removal of a portion of the merchantable volume in a stand of timber so as to leave an uneven-aged stand of well-distributed residual, healthy trees that will reasonably utilize the productivity of the soil. Partial cutting does not include seedtree or shelterwood or other types of regeneration cutting.
"Pesticide" means any insecticide, herbicide, fungicide, or rodenticide, but does not include nontoxic repellents or other forest chemicals.
"Plantable area" is an area capable of supporting a commercial stand of timber excluding lands devoted to permanent roads, utility rights-of-way, that portion of riparian management zones where scarification is not permitted, and any other area devoted to a use incompatible with commercial timber growing.
"Power equipment" means all machinery operated with fuel burning or electrical motors, including heavy machinery, chain saws, portable generators, pumps, and powered backpack devices.
"Preferred tree species" means the following species listed in descending order of priority for each timber habitat type:
| Ponderosa pine habitat type |
Mixed conifer habitat type |
|
| all hardwoods | all hardwoods | |
| ponderosa pine | western larch | |
| western larch | ponderosa pine | |
| Douglas-fir | western red cedar | |
| western red cedar | white pine | |
| Douglas-fir | ||
| lodgepole pine |
"Qualified surveyor" means an individual who has successfully completed the marbled murrelet field training course offered by the department of fish and wildlife or its equivalent.
"Rehabilitation" means the act of renewing, or making usable and reforesting forest land which was poorly stocked or previously nonstocked with commercial species.
"Resource characteristics" means the following specific measurable characteristics of fish, water, and capital improvements of the state or its political subdivisions:
For fish and water:
Physical fish habitat, including temperature and turbidity;
Turbidity in hatchery water supplies; and
Turbidity and volume for areas of water supply.
For capital improvements of the state or its political subdivisions:
Physical or structural integrity.
If the methodology is developed and added to the manual to analyze the cumulative effects of forest practices on other characteristics of fish, water, and capital improvements of the state or its subdivisions, the board shall amend this list to include these characteristics.
"Riparian function" includes bank stability, the recruitment of woody debris, leaf litter fall, nutrients, sediment filtering, shade, and other riparian features that are important to both riparian forest and aquatic system conditions.
"Riparian management zone (RMZ)" means:
(1) For Western Washington
(a) The area protected on each side of a Type S or F Water measured horizontally from the outer edge of the bankfull width or the outer edge of the CMZ, whichever is greater (see table below); and
| Site Class | Western Washington Total RMZ Width |
| I | 200' |
| II | 170' |
| III | 140' |
| IV | 110' |
| V | 90' |
(2) For Eastern Washington
(a) The area protected on each side of a Type S or F Water measured horizontally from the outer edge of the bankfull width or the outer edge of the CMZ, whichever is greater (see table below); and
| Site Class | Eastern Washington Total RMZ Width |
| I | 130' |
| II | 110' |
| III | 90' or 100'* |
| IV | 75' or 100'* |
| V | 75' or 100'* |
| * | Dependent upon stream size. (See WAC 222-30-022.) |
(3) For exempt 20 acre parcels, a specified area alongside Type S and F Waters where specific measures are taken to protect water quality and fish and wildlife habitat.
"RMZ core zone" means:
(1) For Western Washington, the 50 foot buffer of a Type S or F Water, measured horizontally from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-021.)
(2) For Eastern Washington, the 30 foot buffer of a Type S or F Water, measured horizontally from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-022.)
"RMZ inner zone" means:
(1) For Western Washington, the area measured horizontally from the outer boundary of the core zone of a Type S or F Water to the outer limit of the inner zone. The outer limit of the inner zone is determined based on the width of the affected water, site class and the management option chosen for timber harvest within the inner zone. (See WAC 222-30-021.)
(2) For Eastern Washington, the area measured horizontally from the outer boundary of the core zone 45 feet (for streams less than 15 feet wide) or 70 feet (for streams more than 15 feet wide) from the outer boundary of the core zone. (See WAC 222-30-022.)
"RMZ outer zone" means the area measured horizontally between the outer boundary of the inner zone and the RMZ width as specified in the riparian management zone definition above. RMZ width is measured from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-021 and 222-30-022.)
"Road construction" means the establishment of any new sub-grade including widening, realignment, or modification of an existing road prism, with the exception of replacing or installing drainage structures, for the purposes of managing forest land under Title 222 WAC.
"Road maintenance" means any road work specifically related to maintaining water control or road safety and visibility (such as; grading, spot rocking, resurfacing, roadside vegetation control, water barring, ditch clean out, replacing or installing relief culverts, cleaning culvert inlets and outlets) on existing forest roads.
"Rodenticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate rodents or any other vertebrate animal which the director of the state department of agriculture may declare by regulation to be a pest.
"Salvage" means the removal of snags, down logs, windthrow, or dead and dying material.
"Scarification" means loosening the topsoil and/or disrupting the forest floor in preparation for regeneration.
"Sensitive sites" are areas near or adjacent to Type Np Water and have one or more of the following:
(1) Headwall seep is a seep located at the toe of a cliff or other steep topographical feature and at the head of a Type Np Water which connects to the stream channel network via overland flow, and is characterized by loose substrate and/or fractured bedrock with perennial water at or near the surface throughout the year.
(2) Side-slope seep is a seep within 100 feet of a Type Np Water located on side-slopes which are greater than 20 percent, connected to the stream channel network via overland flow, and characterized by loose substrate and fractured bedrock, excluding muck with perennial water at or near the surface throughout the year. Water delivery to the Type Np channel is visible by someone standing in or near the stream.
(3) Type Np intersection is the intersection of two or more Type Np Waters.
(4) Headwater spring means a permanent spring at the head of a perennial channel. Where a headwater spring can be found, it will coincide with the uppermost extent of Type Np Water.
(5) Alluvial fan means an erosional land form consisting of cone-shaped deposit of water-borne, often coarse-sized sediments.
(a) The upstream end of the fan (cone apex) is typically characterized by a distinct increase in channel width where a stream emerges from a narrow valley;
(b) The downstream edge of the fan is defined as the sediment confluence with a higher order channel; and
(c) The lateral margins of a fan are characterized by distinct local changes in sediment elevation and often show disturbed vegetation.
Alluvial fan does not include features that were formed under climatic or geologic conditions which are not currently present or that are no longer dynamic.
"Shorelines of the state" shall have the same meaning as in RCW 90.58.030 (Shoreline Management Act).
"Side casting" means the act of moving excavated material to the side and depositing such material within the limits of construction or dumping over the side and outside the limits of construction.
"Site class" means a grouping of site indices that are used to determine the 50-year or 100-year site class. In order to determine site class, the landowner will obtain the site class index from the state soil survey, place it in the correct index range shown in the two tables provided in this definition, and select the corresponding site class. The site class will then drive the RMZ width. (See WAC 222-30-021 and 222-30-022.)
(1) For Western Washington
| Site class | 50-year site index range (state soil survey) |
| I | 137+ |
| II | 119-136 |
| III | 97-118 |
| IV | 76-96 |
| V | <75 |
| Site class | 100-year site
index range (state soil survey) |
50-year site index range (state soil survey) |
| I | 120+ | 86+ |
| II | 101-120 | 72-85 |
| III | 81-100 | 58-71 |
| IV | 61-80 | 44-57 |
| V | ≤60 | <44 |
(a) If the site index in the soil survey is for red alder, and the whole RMZ width is within that site index, then use site class V. If the red alder site index is only for a portion of the RMZ width, or there is on-site evidence that the site has historically supported conifer, then use the site class for conifer in the most physiographically similar adjacent soil polygon.
(b) In Western Washington, if no site index is reported in the soil survey, use the site class for conifer in the most physiographically similar adjacent soil polygon.
(c) In Eastern Washington, if no site index is reported in the soil survey, assume site class III, unless site specific information indicates otherwise.
(d) If the site index is noncommercial or marginally commercial, then use site class V.
See also section 7 of the board manual.
"Site preparation" means those activities associated with the removal of slash in preparing a site for planting and shall include scarification and/or slash burning.
"Skid trail" means a route used by tracked or wheeled skidders to move logs to a landing or road.
"Slash" means pieces of woody material containing more than 3 cubic feet resulting from forest practice activities.
"SOSEA goals" means the goals specified for a spotted owl special emphasis area as identified on the SOSEA maps (see WAC 222-16-086). SOSEA goals provide for demographic and/or dispersal support as necessary to complement the northern spotted owl protection strategies on federal land within or adjacent to the SOSEA.
"Spoil" means excess material removed as overburden or generated during road or landing construction which is not used within limits of construction.
"Spotted owl dispersal habitat" see WAC 222-16-085(2).
"Spotted owl special emphasis areas (SOSEA)" means the geographic areas as mapped in WAC 222-16-086. Detailed maps of the SOSEAs indicating the boundaries and goals are available from the department at its regional offices.
"Stop work order" means the "stop work order" defined in RCW 76.09.080 of the act and may be issued by the department to stop violations of the forest practices chapter or to prevent damage and/or to correct and/or compensate for damages to public resources resulting from forest practices.
"Stream-adjacent parallel roads" means roads (including associated right-of-way clearing) in a riparian management zone on a property that have an alignment that is parallel to the general alignment of the stream, including roads used by others under easements or cooperative road agreements. Also included are stream crossings where the alignment of the road continues to parallel the stream for more than 250 feet on either side of the stream. Not included are federal, state, county or municipal roads that are not subject to forest practices rules, or roads of another adjacent landowner.
"Sub-mature habitat" see WAC 222-16-085 (1)(b).
"Suitable marbled murrelet habitat" means a contiguous forested area containing trees capable of providing nesting opportunities:
(1) With all of the following indicators unless the department, in consultation with the department of fish and wildlife, has determined that the habitat is not likely to be occupied by marbled murrelets:
(a) Within 50 miles of marine waters;
(b) At least 40% of the dominant and codominant trees are Douglas-fir, western hemlock, western red cedar or sitka spruce;
(c) Two or more nesting platforms per acre;
(d) At least 7 acres in size, including the contiguous forested area within 300 feet of nesting platforms, with similar forest stand characteristics (age, species composition, forest structure) to the forested area in which the nesting platforms occur.
"Suitable spotted owl habitat" see WAC 222-16-085(1).
"Temporary road" means a forest road that is constructed and intended for use during the life of an approved forest practices application/notification. All temporary roads must be abandoned in accordance to WAC 222-24-052(3).
"Threaten public safety" means to increase the risk to the public at large from snow avalanches, identified in consultation with the department of transportation or a local government, or landslides or debris torrents caused or triggered by forest practices.
"Threatened or endangered species" means all species of wildlife listed as "threatened" or "endangered" by the United States Secretary of the Interior or Commerce, and all species of wildlife designated as "threatened" or "endangered" by the Washington fish and wildlife commission.
"Timber" shall mean forest trees, standing or down, of a commercial species, including Christmas trees.
"Unconfined avulsing stream" means generally fifth order or larger waters that experience abrupt shifts in channel location, creating a complex flood plain characterized by extensive gravel bars, disturbance species of vegetation of variable age, numerous side channels, wall-based channels, oxbow lakes, and wetland complexes. Many of these streams have dikes and levees that may temporarily or permanently restrict channel movement.
"Water bar" means a diversion ditch and/or hump in a trail or road for the purpose of carrying surface water runoff into the vegetation duff, ditch, or other dispersion area so that it does not gain the volume and velocity which causes soil movement and erosion.
"Watershed administrative unit (WAU)" means an area shown on the map specified in WAC 222-22-020(1).
"Watershed analysis" means, for a given WAU, the assessment completed under WAC 222-22-050 or 222-22-060 together with the prescriptions selected under WAC 222-22-070 and shall include assessments completed under WAC 222-22-050 where there are no areas of resource sensitivity.
"Weed" is any plant which tends to overgrow or choke out more desirable vegetation.
"Western Washington" means the geographic area of Washington west of the Cascade crest and the drainages defined in Eastern Washington.
"Wetland" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, such as swamps, bogs, fens, and similar areas. This includes wetlands created, restored, or enhanced as part of a mitigation procedure. This does not include constructed wetlands or the following surface waters of the state intentionally constructed from wetland sites: Irrigation and drainage ditches, grass lined swales, canals, agricultural detention facilities, farm ponds, and landscape amenities.
"Wetland functions" include the protection of water quality and quantity, providing fish and wildlife habitat, and the production of timber.
"Wetland management zone" means a specified area adjacent to Type A and B Wetlands where specific measures are taken to protect the wetland functions.
"Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state. The term "wildlife" includes, but is not limited to, any mammal, bird, reptile, amphibian, fish, or invertebrate, at any stage of development. The term "wildlife" does not include feral domestic mammals or the family Muridae of the order Rodentia (old world rats and mice).
"Wildlife reserve trees" means those defective, dead, damaged, or dying trees which provide or have the potential to provide habitat for those wildlife species dependent on standing trees. Wildlife reserve trees are categorized as follows:
Type 1 wildlife reserve trees are defective or deformed live trees that have observably sound tops, limbs, trunks, and roots. They may have part of the top broken out or have evidence of other severe defects that include: "Cat face," animal chewing, old logging wounds, weather injury, insect attack, or lightning strike. Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 1 wildlife reserve trees. These trees must be stable and pose the least hazard for workers.
Type 2 wildlife reserve trees are dead Type 1 trees with sound tops, limbs, trunks, and roots.
Type 3 wildlife reserve trees are live or dead trees with unstable tops or upper portions. Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 3 wildlife reserve trees. Although the roots and main portion of the trunk are sound, these reserve trees pose high hazard because of the defect in live or dead wood higher up in the tree.
Type 4 wildlife reserve trees are live or dead trees with unstable trunks or roots, with or without bark. This includes "soft snags" as well as live trees with unstable roots caused by root rot or fire. These trees are unstable and pose a high hazard to workers.
"Windthrow" means a natural process by which trees are uprooted or sustain severe trunk damage by the wind.
"Yarding corridor" means a narrow, linear path through a riparian management zone to allow suspended cables necessary to support cable logging methods or suspended or partially suspended logs to be transported through these areas by cable logging methods.
"Young forest marginal habitat" see WAC 222-16-085 (1)(b).
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-16-010, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-16-010, filed 3/13/98, effective 5/1/98; 97-24-091, § 222-16-010, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-16-010, filed 7/21/97, effective 8/21/97. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-16-010, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 94-17-033, § 222-16-010, filed 8/10/94, effective 8/13/94; 93-12-001, § 222-16-010, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-16-010, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 92-03-028, § 222-16-010, filed 1/8/92, effective 2/8/92; 91-23-052, § 222-16-010, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-16-010, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), § 222-16-010, filed 11/16/87, effective 1/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-16-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-16-010, filed 6/16/76.]
OTS-6585.2
AMENDATORY SECTION(Amending WSR 01-12-042, filed 5/30/01,
effective 7/1/01)
WAC 222-20-010
Applications and notifications -- Policy.
(1) No Class II, III or IV forest practices shall be commenced
or continued unless the department has received a notification
for Class II forest practices, or approved an application for
Class III or IV forest practices pursuant to the act. Where
the time limit for the department to act on the application
has expired, and none of the conditions in WAC 222-20-020(1)
exist, the operation may commence. (NOTE: OTHER LAWS AND RULES AND/OR
PERMIT REQUIREMENTS MAY APPLY. SEE CHAPTER 222-50 WAC.)
(2) The department shall prescribe the form and contents of the notification and application, which shall specify what information is needed for a notification, and the information required for the department to approve or disapprove the application.
(3) Except as provided in subpart (4) below, applications and notifications shall be signed by the landowner, the timber owner and the operator, or the operator and accompanied by a consent form signed by the timber owner and the landowner. A consent form may be another document if it is signed by the landowner(s) and it contains a statement acknowledging that he/she is familiar with the Forest Practices Act, including the provisions dealing with conversion to another use (RCW 76.09.060(3)).
(4) In lieu of a landowner's signature, where the timber rights have been transferred by deed to a perpetual owner who is different from the forest landowner, the owner of perpetual timber rights may sign a forest practices application or notification for operations not converting to another use and the statement of intent not to convert for a set period of time. The holder of perpetual timber rights shall serve the signed forest practices application or notification and the signed statement of intent on the forest landowner. The forest practices application shall not be considered complete until the holder of perpetual timber rights has submitted evidence acceptable to the department that such service has occurred.
(5) Where an application for a conversion is not signed by the landowner or accompanied by a consent form, as outlined in subsection (3) of this section, the department shall not approve the application. Applications and notifications for the development or maintenance of utility rights of way shall not be considered to be conversions.
(6) Transfer of the approved application or notification to a new landowner, timber owner or operator requires written notice by the original landowner or applicant to the department and should include the original application or notification number. This written notice shall be in a form acceptable to the department and shall contain an affirmation signed by the new landowner, timber owner, or operator, as applicable, that he/she agrees to be bound by all conditions on the approved application or notification. In the case of a transfer of an application previously approved without the landowner's signature the new timber owner or operator must submit a bond securing compliance with the requirements of the forest practices rules as determined necessary by the department. If an application or notification indicates that the landowner or timber owner is also the operator, or an operator signed the application, no notice need be given regarding any change in subcontractors or similar independent contractors working under the supervision of the operator of record.
(7) Applications and notifications must be delivered to the department at the appropriate region office. Delivery should be in person or by registered or certified mail.
(8) Applications and notifications shall be considered received on the date and time shown on any registered or certified mail receipt, or the written receipt given at the time of personal delivery, or at the time of receipt by general mail delivery. Applications or notifications that are not complete, or are inaccurate will not be considered officially received until the applicant furnishes the necessary information to complete the application.
(a) A review statement from the U.S. Forest Service that evaluates compliance of the forest practices with the CRGNSA special management area guidelines is necessary information for an application or notification within the CRGNSA special management area. The review statement requirement shall be waived if the applicant can demonstrate the U.S. Forest Service received a complete plan application and failed to act within 45 days.
(b) An environmental checklist (WAC 197-11-315) is necessary information for all Class IV applications.
(c) A local government entity clearing and/or grading permit is necessary information for all Class IV applications on lands that will be converted to a use other than commercial timber production or on lands which have been platted after January 1, 1960, if the local government entity has jurisdiction and has an ordinance requiring such permit.
(d) A road maintenance and abandonment plan as described in WAC 222-24-0511 shall be submitted with a small forest landowner's application or notification for harvest or salvage of trees, unless exempt under WAC 222-24-0512.
If a notification or application is delivered in person to the department by the operator or the operator's authorized agent, the department shall immediately provide a dated receipt. In all other cases, the department shall immediately mail a dated receipt to the applicant.
(9) An operator's name, if known, must be included on any forest practices application or notification. The landowner or timber owner must provide notice of hiring or change of operator to the department within 48 hours. The department shall promptly notify the landowner if the operator is subject to a notice of intent to disapprove under WAC 222-46-070. Once notified, the landowner will not permit the operator, who is subject to a notice of intent to disapprove, to conduct the forest practices specified in the application or notification, or any other forest practices until such notice of intent to disapprove is removed by the department.
(10) Financial assurances may be required by the department prior to the approval of any future forest practices application or notification to an operator or landowner under the provisions of WAC 222-46-090.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-010, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-20-010, filed 3/13/98, effective 5/1/98; 93-12-001, § 222-20-010, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-20-010, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-010, filed 11/16/87, effective 1/1/88; 82-18-053 (Resolution No. 82-2), § 222-20-010, filed 8/31/82. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-20-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-20-010, filed 6/16/76.]
(a) A description of the forest practices to be conducted during the period requested for the permit, and a map(s) showing their locations; and
(b) Prescriptions must be identified where operations are proposed within or include areas of resource sensitivity.
(2) A landowner may apply for a multiyear permit to perform road maintenance or abandonment if the landowner has an approved road maintenance and abandonment plan where the schedule for implementing the plan is longer than two years. The information provided and level of detail must be comparable to that required for two-year permits under WAC 222-24-050. A checklist road maintenance and abandonment plan does not qualify for a multiyear permit.
(3) A landowner may apply for a multiyear permit to perform an approved alternate plan.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-015, filed 5/30/01, effective 7/1/01.]
(2) All approvals are subject to any conditions stipulated on the approved application and to any subsequent additional requirements set forth in a stop work order or a notice to comply.
(3) Local government entity conditions.
(a) RCW 76.09.240(1) allows a local government entity to exercise limited land use planning or zoning authority on certain types of forest practices. This subsection is designed to ensure that local government entities exercise this authority consistent with chapter 76.09 RCW and the rules in Title 222 WAC. The system provided for in this subsection is optional.
(b) This subsection only applies to Class IV general applications on lands that will be converted to a use other than commercial timber production or to Class IV general applications on lands which have been platted after January 1, 1960.
(c) The department shall transmit the applications to the appropriate local government entity within two business days from the date the department receives the application.
(d) The department shall condition the application consistent with the request of the local government entity if:
(i) The local government entity has adopted a clearing and/or grading ordinance that addresses the items listed in (e) of this subsection and requires a permit;
(ii) The local government entity has issued a permit under the ordinance in (i) that contains the requested conditions; and
(iii) The local government entity has entered into an interagency agreement with the department consistent with WAC 222-50-030 addressing enforcement of forest practices.
(e) The local government entity conditions may only cover:
(i) The location and character of open space and/or vegetative buffers;
(ii) The location and design of roads;
(iii) The retention of trees for bank stabilization, erosion prevention, and/or storm water management; or
(iv) The protection of critical areas designated pursuant to chapter 36.70A RCW.
(f) Local government entity conditions shall be filed with the department within twenty-nine days of the filing of the application with the department or within fourteen business days of the transmittal of the application to the local government entity or one day before the department acts on the application, whichever is later.
(g) The department shall incorporate local government entity conditions consistent with this subsection as conditions of the forest practices approval.
(h) Any exercise of local government entity authority consistent with this subsection shall be considered consistent with the forest practices rules in this chapter.
(4) Lead agency mitigation measures.
(a) This subsection is designed to specify procedures for a mitigated DNS process that are consistent with chapters 76.09 and 43.21C RCW and the rules in Title 222 WAC and chapter 197-11 WAC.
(b) This subsection applies to all Class IV applications in which the department is not the lead agency under SEPA. (See WAC 197-11-758.)
(c) The department shall transmit the application to the lead agency within two business days from the date the department receives the application.
(d) The lead agency may specify mitigation measures pursuant to WAC 197-11-350.
(e) The lead agency threshold determination and any mitigation measures must be filed with the department within the later of (i) twenty-nine days of the receipt of the application by the department, (ii) fourteen business days of the transmittal of the application to the lead agency if the lead agency is a local government entity; or (iii) one day before the department acts on the application.
(f) Unless the applicant clarifies or changes the application to include mitigation measures specified by the lead agency, the department must deny the application or require an EIS. (See WAC 197-11-738.)
(g) If the department does not receive a threshold determination from the lead agency by the time it must act on the application, the department shall deny the application.
(5) Small forest landowner approval conditions.
(a) The department shall not disapprove a forest practices application or notification filed by a small forest landowner solely on the basis that fish passage barriers have not been removed, replaced or repaired if:
(i) The landowner will remove, replace or repair fish passage barriers on the forest roads covered or affected by the forest practices application or notification, during the term of the forest practices application or notification; or
(ii) The landowner commits to the state led cost share program to remove, replace or repair all fish passage barriers on the forest roads covered or affected by the forest practices application or notification and the landowner's fish passage barriers are lower on the priority list for funding than current projects funded by the program.
(b) The department shall not approve applications or notifications for harvest or salvage of trees from small forest landowners who previously committed to:
(i) Participate in the cost share program, but failed to remove, replace or repair the fish passage barriers on their own lands when cost share funding became available; or
(ii) Remove, replace or repair fish passage barriers on their own lands as an identified part of a forest practice application but failed to do so.
(6) CRGNSA special management area.
(a) Policy. The states of Oregon and Washington have entered into a Compact preauthorized by Congress to implement the CRGNSA Act, 16 U.S.C. §§ 544, et seq. chapter 43.97 RCW, 16 U.S.C. § 544c. The purposes of the CRGNSA Act are:
(i) To establish a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge; and
(ii) To protect and support the economy of the Columbia River Gorge area by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with paragraph (1). 16 U.S.C. § 544a.
The forest practices rules addressing forest practices in the CRGNSA special management area recognize the intent of Congress and the states expressed in the CRGNSA Act and Compact and the intent of the Washington state legislature in the Forest Practices Act. These rules are designed to recognize the public interest in sound natural resource protection provided by the Act and the Compact, including the protection to public resources, recreation, and scenic beauty. These rules are designed to achieve a comprehensive system of laws and rules for forest practices in the CRGNSA special management area which avoids unnecessary duplication, provides for interagency input and intergovernmental and tribal coordination and cooperation, considers reasonable land use planning goals contained in the CRGNSA management plan, and fosters cooperation among public resources managers, forest landowners, tribes and the citizens.
(b) The CRGNSA special management area guidelines shall apply to all forest practices within the CRGNSA special management area. Other forest practices rules also apply to these forest practices. To the extent these other rules are inconsistent with the guidelines, the more restrictive requirement controls. To the extent there is an incompatibility between the guidelines and another rule, the guidelines control. Copies of the guidelines can be obtained from the department Southeast and Southwest regional offices and Olympia office, as well as from the Columbia River Gorge commission and the U.S. Forest Service.
(c) The department shall review and consider the U.S. Forest Service review statement and shall consult with the U.S. Forest Service and the Columbia River Gorge commission prior to making any determination on an application or notification within the CRGNSA special management area.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-040, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-20-040, filed 3/13/98, effective 5/1/98. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-20-040, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-040, filed 11/16/87, effective 1/1/88; Order 263, § 222-20-040, filed 6/16/76.]
(1) Prior to the sale or transfer of land or perpetual timber rights subject to continuing forest land obligations under the Forest Practices Act and rules, the seller must notify the buyer of the existence and nature of such a continuing obligation and the buyer must sign a notice of continuing forest land obligation indicating the buyer's knowledge of the obligations. The notice must be:
(a) On a form prepared by the department;
(b) Sent to the department by the seller at the time of sale or transfer of land or perpetual timber rights; and
(c) Retained by the department.
(2) If the seller fails to notify the buyer about the continuing forest land obligation, the seller must pay the buyer's costs related to continuing forest land obligations, including all legal costs and reasonable attorneys' fees incurred by the buyer in enforcing the continuing forest land obligation against the seller.
(3) Failure by the seller to send the required notice to the department at the time of sale will be prima facie evidence in an action by the buyer against the seller for costs related to the continuing forest land obligation prior to sale.
(4) Small forest landowner checklist road maintenance and abandonment plans are exempt from the notice requirements of this section.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-055, filed 5/30/01, effective 7/1/01.]
OTS-6587.2
AMENDATORY SECTION(Amending WSR 01-12-042, filed 5/30/01,
effective 7/1/01)
WAC 222-24-050
*Road maintenance and abandonment.
All
forest roads must be maintained to prevent damage to public
resources. The goals for road maintenance are established in
WAC 222-24-010.
(1) All forest roads on lands owned by large forest landowners must be improved and maintained to the standards of this chapter within 15 years of the effective date of these rules. Guidelines for how to meet these goals and standards are in the board manual, section 3. Work performed toward meeting the standards must generally be even flow over the 15-year period with priorities for achieving the most benefit to public resources early in the period. Replacement will not be required for existing culverts functioning with little risk to public resources or for culverts installed under an approved forest practices application or notification if they have been properly maintained and are capable of passing fish, until the end of the culvert's functional life.
(2) Forest roads used as part of any forest practices applications or notifications on lands owned by small forest landowners must be maintained only to the extent necessary to prevent damage to public resources.
(a) A cost share program administered by the department is available to assist small forest landowners with the removal, replacement, or repair of fish passage barriers that were installed prior to October 31, 2003. The cost share program includes limits on landowner costs and the opportunity for in-kind contributions. A small forest landowner may qualify for full funding for fish passage barrier removal, replacement or repair under certain conditions.
(b) Small forest landowners who have committed to participate in the state led cost share program are not required to remove, replace or repair fish passage barriers until cost share funding is available and higher priority fish passage barriers on other lands in the watershed have been removed or funded.
(c) A small forest landowner not participating in the state led cost share program must remove, replace or repair any fish passage barriers on the forest roads within their ownership covered or affected by an active forest practices application or notification for harvest or salvage of trees.
(3) If any landowner is notified by the department that their road(s) has the potential to damage public resources, the landowner must, within 90 days, submit to the department for review and approval a plan or plans for those drainages or road systems within the area identified by the department.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-24-050, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-24-050, filed 12/3/97, effective 1/3/98; 93-12-001, § 222-24-050, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-050, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-050, filed 11/16/87, effective 1/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-24-050, filed 8/3/82, effective 10/1/82; Order 263, § 222-24-050, filed 6/16/76.]
*(1) Large forest landowners ((with 500 acres or more of
forest land in a DNR region)) must maintain a schedule of
submitting plans to the department that cover 20% of their
roads or land base each year.
((*(2) Landowners with less than 500 acres of forest land
in a DNR region must submit with their first forest practice
application or notification a road maintenance and abandonment
plan covering the roads that will be used by the application.
Within one year of the date of submittal of the first forest
practices application or notification or before the end of
2005, whichever comes first, the landowner must submit a road
maintenance and abandonment plan for the rest of their
ownership in that region. Once the plan is approved, the
landowner must attach or reference the approved road
maintenance and abandonment plan when submitting subsequent
applications.
(3))) (2) For those portions of their ownership that fall within a watershed administrative unit covered by an approved watershed analysis plan, chapter 222-22 WAC, landowners may follow the watershed administrative unit-road maintenance plan, providing the roads they own are covered by the plan. A proposal to update the road plan to meet the current road maintenance standards must be submitted to the department for review on or before the next scheduled road maintenance plan review. If annual reviews are not required as part of the watershed analysis road plan, the plan must be updated by October 1, 2005. All roads in the planning area must be in compliance with the current rules by the end of calendar year 2015. See the board manual section 3 for road maintenance and abandonment plan outline.
*(((4))) (3) Plans will be submitted by landowners on a
priority basis. Road systems or drainages in which
improvement, abandonment or maintenance have the highest
potential benefit to the public resource are the highest
priority. Based upon a "worst first" principle, work on roads
that affect the following are presumed to be the highest
priority:
(a) Basins containing, or road systems potentially affecting, waters which either contain a listed threatened or endangered fish species under the federal or state law or a water body listed on the current 303(d) water quality impaired list for road related issues.
(b) Basins containing, or road systems potentially affecting, sensitive geology/soils areas with a history of slope failures.
(c) Road systems or basins where other restoration projects are in progress or may be planned coincident to the implementation of the proposed road plan.
(d) Road systems or basins likely to have the highest use in connection with future forest practices.
*(((5))) (4) Based upon a "worst first" principle, road
maintenance and abandonment plans must pay particular
attention to:
(a) Roads that block fish passage;
(b) Roads that deliver sediment to typed water;
(c) Roads with evidence of existing or potential instability that could adversely affect public resources;
(d) Roads or ditchlines that intercept ground water; and
(e) Roads or ditches that deliver surface water to any typed waters.
*(((6))) (5) Road maintenance and abandonment plans must
include:
(a) Ownership maps showing all forest roads, including orphan roads; planned and potential abandonment, all typed water, Type A and B Wetlands that are adjacent to or crossed by roads, stream adjacent parallel roads and an inventory of the existing condition; and
(b) Detailed description of the first years work with a schedule to complete the entire plan within fifteen years; and
(c) Standard practices for routine road maintenance; and
(d) Storm maintenance strategy that includes prestorm planning, emergency maintenance and post storm recovery; and
(e) Inventory and assessment of the risk to public resources or public safety of orphaned roads; and
(f) The landowner or landowner representative's signature.
*(((7))) (6) Priorities for road maintenance work within
plans are:
(a) Removing blockages to fish passage beginning on roads affecting the most habitat first, generally starting at the bottom of the basin and working upstream;
(b) Preventing or limiting sediment delivery (areas where sediment delivery or mass wasting will most likely affect bull trout habitat will be given the highest priority);
(c) Correcting drainage or unstable sidecast in areas where mass wasting could deliver to public resources or threaten public safety;
(d) Disconnecting road drainage from typed waters;
(e) Repairing or maintaining stream-adjacent parallel roads with an emphasis on minimizing or eliminating water and sediment delivery;
(f) Improving hydrologic connectivity by minimizing the interruption of surface water drainage, interception of subsurface water, and pirating of water from one basin to another; and
(g) Repair or maintenance work which can be undertaken with the maximum operational efficiency.
*(((8))) (7) Initial plans for large forest landowners
((with 500 acres or more of forest land in a DNR region)) must
be submitted to the department during the year 2001 as
scheduled by the department.
*(((9))) (8) Each year on the anniversary date of the
plan's submittal, landowners must report work accomplished for
the previous year and submit to the department a detailed
description of the upcoming year's work including
modifications to the existing work schedule. The department's
review and approval will be conducted in consultation with the
department of ecology, the department of fish and wildlife,
affected tribes and interested parties. The department will:
(a) Review the progress of the plans annually with the landowner to determine if the plan is being implemented as approved; and
(b) The plan will be reviewed by the department and approved or returned to the applicant with concerns that need to be addressed within forty-five days of the plan's submittal.
(c) Additional plans will be signed by the landowner or the landowner's representative.
*(((10))) (9) The department will facilitate an annual
water resource inventory area (WRIA) meeting with landowners,
the department of fish and wildlife, the department of
ecology, affected tribes, the National Marine Fisheries
Service, the U.S. Fish and Wildlife Service, affected
counties, local U.S. Forest Service, watershed councils, and
other interested parties. The purpose of the meeting is to:
(a) Suggest priorities for road maintenance and abandonment planning; and
(b) Exchange information on road maintenance and stream restoration projects.
*(((11))) (10) A forest practice application with a
detailed one to five year work plan associated with a
submitted road maintenance and abandonment plan will be
treated as a multiyear permit. The application will be
reviewed, approved, conditioned and/or disapproved within 45
days of acceptance. The application will be reviewed in
consultation with the department of ecology, department of
fish and wildlife, affected tribes and interested parties.
*(((12))) (11) Regardless of the schedule for plan
development, roads that are currently used or proposed to be
used for timber hauling must be maintained in a condition that
prevents potential or actual damage to public resources. If
the department determines that log haul on such a road will
cause or has the potential to cause material damage to a
public resource, the department may require the applicant to
submit a plan to address specific issues or segments on the
haul route.
*(((13))) (12) If a landowner is found to be out of
compliance with the work schedule of an approved road
maintenance and abandonment plan and the department determines
that this work is necessary to prevent potential or actual
damage to public resources, then the department will exercise
its authority under WAC 222-46-030 (notice to comply) and WAC 222-46-040 (stop work order) to restrict use of the affected
road segment.
(a) The landowner may submit a revised maintenance plan for maintenance and abandonment and request permission to use the road for log haul.
(b) The department must approve use of the road if the revised maintenance plan provides protection of the public resource and maintains the overall schedule of maintenance of the road system or basin.
*(((14))) (13) If a landowner is notified by the
department that their road(s) has the potential to damage
public resources, the landowner must, within 90 days, submit
to the department for review and approval a plan or plans for
those drainages or road systems within the area identified by
the department.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-24-051, filed 5/30/01, effective 7/1/01.]
(a) Small forest landowners may submit with each forest practices application or notification a checklist road maintenance and abandonment plan for the forest roads covered or affected by the forest practices activity. A small forest landowner may, at any time, submit a checklist road maintenance and abandonment plan for their entire ownership.
(b) Small forest landowners may submit for approval road maintenance and abandonment plans as outlined in WAC 222-24-051. Approved road maintenance and abandonment plans must be attached to or referenced in subsequent forest practices applications or notifications.
(c) For those portions of their ownership that fall within a watershed administrative unit covered by an approved watershed analysis plan, chapter 222-22 WAC, small forest landowners may follow the watershed administrative unit-road maintenance plan, providing the roads they own are covered by the plan.
(2) A small forest landowner is not required to submit an annual report as described in WAC 222-24-051(8).
(3) Small forest landowners who have committed to participate in the cost share program are not required to remove, replace or repair fish passage barriers until funding is available and higher priority fish passage barriers on other lands in the watershed have been removed or funded.
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