BP BHEAD INT H

AN ACT Relating to the regulation of forest practices; amending RCW 76.09.010, 76.09.020, 76.09.050, 76.09.080, and 76.09.090; adding new sections to chapter 76.09 RCW; creating a new section; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 76.09 RCW to read as follows:

The legislature finds and declares that:

(1) Failing to allow private forest landowners and state trust lands to achieve an acceptable rate of return on their investments in forest lands will result in the loss of revenues to schools and the beneficiaries of other state trust lands and in the loss of working forest lands throughout the state, and this loss will be harmful to the general welfare of the people and the environment of the state. In light of the long-term nature of forest investments, much greater regulatory certainty than currently exists is required for private forest landowners to remain viable in this state.

(2) Some of the current rules that restrict forest practices are not compatible with the economic needs of private landowners and the beneficiaries of state trust lands. Moreover, the process by which these rules have been adopted and administered creates an unacceptable level of regulatory uncertainty.

(3) It is in the best interest of the state that rules restricting forest activities on private and state trust lands for endangered, threatened, or sensitive species be adopted under the normal rule-making procedures of the board, be directed toward ensuring the survival of the affected species as a whole, and impose the burden for the recovery of the species on public lands other than state trust lands.

Sec. 2. RCW 76.09.010 and 1993 c 443 s 1 are each amended to read as follows:

(1) The legislature hereby finds and declares that the forest land resources are among the most valuable of all resources in the state; that a viable forest products industry is of prime importance to the state's economy; that it is in the public interest for public and private commercial forest lands to be managed consistent with sound policies of natural resource protection; that ((~~coincident with maintenance of a viable forest products industry~~)) it is important to encourage economic and efficient forest practices to assure the continuous growing and harvesting of timber as the primary use of private forest lands and state trust lands and the maintenance of forest lands for these purposes; and that, consistent with the policy of assuring continuous growing and harvesting of timber, it is important to afford protection to forest soils, fisheries, wildlife, water quantity and quality, air quality, recreation, and scenic beauty.

(2) The legislature further finds and declares it to be in the public interest of this state to create and maintain through the adoption of this chapter a comprehensive state-wide system of laws and forest practices regulations which will achieve the following purposes and policies:

(a) Afford protection to, promote, foster and encourage timber growth, and require such minimum reforestation of commercial tree species on forest lands as will reasonably utilize the timber growing capacity of the soil following current timber harvest;

(b) Afford protection to forest soils and public resources by utilizing all reasonable methods of technology in conducting forest practices;

(d) Promote efficiency by permitting maximum operating freedom consistent with the other purposes and policies stated herein;

(e) Provide for regulation of forest practices so as to avoid unnecessary duplication in such regulation;

(f) Provide for interagency input and intergovernmental and tribal coordination and cooperation;

(g) Achieve compliance with all applicable requirements of federal and state law with respect to nonpoint sources of water pollution from forest practices;

(h) To consider reasonable land use planning goals and concepts contained in local comprehensive plans and zoning regulations; and

(i) Foster cooperation among managers of public resources, forest landowners, Indian tribes and the citizens of the state.

(3) The legislature further finds and declares that it is also in the public interest of the state to encourage forest landowners to undertake corrective and remedial action to reduce the impact of mass earth movements and fluvial processes.

(4) The legislature further finds and declares that it is in the public interest that the applicants for state forest practice permits should assist in paying for the cost of review and permitting necessary for the environmental protection of these resources.

(5) The legislature further finds and declares that it is in the public interest that the state implement the purposes and policies set forth in subsection (2) of this section in a manner that is compatible with the primary use of the forest lands of the state and the maintenance of a viable forest products industry.

Sec. 3. RCW 76.09.020 and 1974 ex.s. c 137 s 2 are each amended to read as follows:

For purposes of this chapter:

(1) "Appeals board" ((~~shall~~)) means the forest practices appeals board created by RCW 76.09.210.

(2) "Commissioner" ((~~shall~~)) means the commissioner of public lands.

(3) "Contiguous" ((~~shall~~)) means land adjoining or touching by common corner or otherwise. Land having common ownership divided by a road or other right of way shall be considered contiguous.

(4) "Conversion to a use other than commercial timber operation" ((~~shall~~)) means a bona fide conversion to an active use which is incompatible with timber growing and as may be defined by forest practices regulations.

(5) "Department" ((~~shall~~)) means the department of natural resources.

(6) "Forest land" ((~~shall~~)) 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.

(7) "Forest land owner" ((~~shall~~)) means 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 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 land owner" 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.

(8) "Forest practice" ((~~shall~~)) means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:

(a) Road and trail construction;

(b) Harvesting, final and intermediate;

(d) Reforestation;

(e) Fertilization;

(f) Prevention and suppression of diseases and insects;

(g) Salvage of trees; and

(h) Brush control.

"Forest practice" ((~~shall~~)) does not include preparatory work such as tree marking, surveying and road flagging, and removal or harvesting 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.

(9) "Forest practices regulations" ((~~shall~~)) means any rules promulgated pursuant to RCW 76.09.040.

(10) "Application" ((~~shall~~)) means the application required pursuant to RCW 76.09.050.

(11) "Operator" ((~~shall~~)) means any person engaging in forest practices except an employee with wages as his sole compensation.

(12) "Person" ((~~shall~~)) means any individual, partnership, private, public, or municipal corporation, county, the department or other state or local governmental entity, or association of individuals of whatever nature.

(13) "Public lands" means lands administered by the federal government, including, but not limited to, national parks, national forests, national monuments, and lands administered by the bureau of land management; and lands administered by the state or its political subdivisions, including, but not limited to, state parks, state wildlife refuges, and county parks, but does not include state trust lands.

(14) "Public resources" ((~~shall~~)) means water, species of fish and wildlife as distinct from individual members of species, and in addition shall mean capital improvements of the state or its political subdivisions.

((~~(14)~~)) (15) "Timber" ((~~shall~~)) means forest trees, standing or down, of a commercial species, including Christmas trees.

((~~(15)~~)) (16) "Timber owner" ((~~shall~~)) means any person having all or any part of the legal interest in timber. Where such timber is subject to a contract of sale, "timber owner" ((~~shall~~)) means the contract purchaser.

((~~(16)~~)) (17) "Board" ((~~shall~~)) means the forest practices board created in RCW 76.09.030.

(18) "Endangered species" means: (a) Any wildlife species native to the state of Washington that is seriously threatened with extinction and is lawfully designated as endangered by an authorized agency of the state of Washington; or (b) any wildlife species designated as endangered under the endangered species act.

(19) "Material damage" means actual damage that significantly exceeds the ordinary impact of comparable forest practices and is long term and of more than localized effect.

(20) "Recovery plan" means either: (a) A final federal recovery plan issued under the endangered species act; or (b) a final state recovery plan validly issued by an authorized state agency.

(21) "State trust lands" means lands held in trust by the state of Washington for the common schools, the University of Washington, and others pursuant to the Washington enabling act (25 Stat. 676) and lands held in trust by the state of Washington for various counties pursuant to RCW 76.12.030.

(22) "Threatened species" means: (a) Any wildlife species native to the state of Washington that is likely to become an endangered species within the foreseeable future without cooperative management or removal of threats and is lawfully designated as threatened by an authorized agency of the state of Washington; or (b) any wildlife species designated as threatened under the endangered species act.

(23) "Watershed analysis" means that process and report described in chapter 222-22 WAC.

(24) "Endangered species act" means the federal endangered species act, 87 Stat. 884, 16 U.S.C. 1531 et seq.

Sec. 4. RCW 76.09.050 and 1994 c 264 s 49 are each amended to read as follows:

(1) The board shall establish by rule which forest practices shall be included within each of the following classes:

(a) Class I: Minimal or specific forest practices that have no direct potential for damaging a public resource that may be conducted without submitting an application or a notification;

(b) Class II: Forest practices which have a less than ordinary potential for damaging a public resource that may be conducted without submitting an application and may begin five calendar days, or such lesser time as the department may determine, after written notification by the operator, in the manner, content, and form as prescribed by the department, is received by the department. However, the work may not begin until all forest practice fees required under RCW 76.09.065 have been received by the department. Class II shall not include forest practices:

((~~(a)~~)) (i) On lands platted after January 1, 1960, or being converted to another use;

((~~(b)~~)) (ii) Which require approvals under the provisions of the hydraulics act, RCW 75.20.100;

((~~(c)~~)) (iii) Within "shorelines of the state" as defined in RCW 90.58.030; or

((~~(d)~~)) (iv) Excluded from Class II by the board;

(c) Class III: Forest practices other than those contained in Class I, II, or IV, and the following, unless they are determined to be Class I or Class II forest practices:

(i) Forest practices within an area covered by an approved watershed analysis and consistent with the watershed analysis prescriptions for that area;

(ii) Forest practices consistent with a habitat conservation plan and federally issued incidental take permit;

(iii) Forest practices consistent with a federally issued incidental take statement;

(iv) Forest practices consistent with a federally approved unlisted species agreement, whether part of or separate from an approved habitat conservation plan;

(v) Forest practices consistent with a federally approved habitat management plan, which plan is accompanied by a federal letter indicating no take will occur if such a plan is implemented; and

(vi) Forest practices consistent with a federal rule adopted for the conservation of species under the endangered species act.

For purposes of this Class III rule, "federally approved" or "federally issued" means approved or issued by the United States fish and wildlife service, the national marine fisheries service, or a similar federal agency pursuant to the endangered species act. Without limitation, those forest practices identified in (c)(i) through (vi) of this subsection do not have the potential for a substantial impact on the environment. Substantive provisions of this chapter and any forest practice regulations adopted by the forest practices board which purport to regulate activities pertaining to the modules covered by the applicable watershed analysis are inapplicable to forest practices described in (c)(i) of this subsection. Substantive provisions of this chapter and any forest practice regulations adopted by the forest practices board which purport to regulate activities affecting the species covered by the federally approved or issued documents described in (c) (ii) through (vi) of this subsection are inapplicable to the forest practices identified in (c) (ii) through (vi) of this subsection. A Class III application must be approved or disapproved by the department within thirty calendar days from the date the department receives the application. However, the applicant may not begin work on that forest practice until all forest practice fees required under RCW 76.09.065 have been received by the department;

(d) Class IV: Forest practices other than those contained in Class I or II: ((~~(a)~~)) (i) On lands platted after January 1, 1960, ((~~(b)~~)) (ii) on lands being converted to another use, ((~~(c)~~)) (iii) on lands which, pursuant to RCW 76.09.070 as now or hereafter amended, are not to be reforested because of the likelihood of future conversion to urban development, and/or ((~~(d)~~)) (iv) which have a potential for a substantial impact on the environment and therefore require an evaluation by the department as to whether or not a detailed statement must be prepared pursuant to the state environmental policy act, chapter 43.21C RCW. Such evaluation shall be made within ten days from the date the department receives the application: PROVIDED, That nothing herein shall be construed to prevent any local or regional governmental entity from determining that a detailed statement must be prepared for an action pursuant to a Class IV forest practice taken by that governmental entity concerning the land on which forest practices will be conducted. A Class IV application must be approved or disapproved by the department within thirty calendar days from the date the department receives the application, unless the department determines that a detailed statement must be made, in which case the application must be approved or disapproved by the department within sixty calendar days from the date the department receives the application, unless the commissioner of public lands, through the promulgation of a formal order, determines that the process cannot be completed within such period. However, the applicant may not begin work on that forest practice until all forest practice fees required under RCW 76.09.065 have been received by the department.

Forest practices under Classes I, II, and III are exempt from the requirements for preparation of a detailed statement under the state environmental policy act.

(2) No Class II, Class III, or Class IV forest practice shall be commenced or continued after January 1, 1975, unless the department has received a notification with regard to a Class II forest practice or approved an application with regard to a Class III or Class IV forest practice containing all information required by RCW 76.09.060 as now or hereafter amended: PROVIDED, That any person commencing a forest practice during 1974 may continue such forest practice until April 1, 1975, if such person has submitted an application to the department prior to January 1, 1975: PROVIDED, FURTHER, That in the event forest practices regulations necessary for the scheduled implementation of this chapter and RCW 90.48.420 have not been adopted in time to meet such schedules, the department shall have the authority to regulate forest practices and approve applications on such terms and conditions consistent with this chapter and RCW 90.48.420 and the purposes and policies of RCW 76.09.010 until applicable forest practices regulations are in effect.

(3) If a notification or application is delivered in person to the department by the operator or the operator's agent, the department shall immediately provide a dated receipt thereof. In all other cases, the department shall immediately mail a dated receipt to the operator.

(4) Forest practices shall be conducted in accordance with the forest practices regulations, orders and directives as authorized by this chapter or the forest practices regulations, and the terms and conditions of any approved applications. The department may impose a condition on an application only after it has concluded that the condition is necessary to prevent material damage to a public resource. The department must also determine that there is no less restrictive or less costly measure reasonably likely to prevent the material damage. Before imposing the condition, the department must prepare a written decision document, which it shall attach to the approved application. The decision document shall:

(a) Set forth in reasonable detail the basis for the department's conclusion that material damage will occur unless the condition is imposed;

(b) Identify all evidence relied upon by the department. Where evidence includes observations of department personnel or others, the observers shall be identified. Copies of any research results or other written authorities relied upon shall be included, or cited if commonly available; and

(c) Identify the alternative conditions, if any, which were considered and rejected and the reasons such alternatives were not accepted.

In an appeal of a condition imposed by the department, the department shall bear the burden of proving that the condition is necessary to prevent material damage to public resources, and that no less restrictive or costly condition is reasonably likely to prevent the material damage. The department shall be limited in the appeal to presenting the evidence identified in the decision document.

(5) The department of natural resources shall notify the applicant in writing of either its approval of the application or its disapproval of the application and the specific manner in which the application fails to comply with the provisions of this section or with the forest practices regulations. Except as provided otherwise in this section, if the department fails to either approve or disapprove an application or any portion thereof within the applicable time limit, the application shall be deemed approved and the operation may be commenced: PROVIDED, That this provision shall not apply to applications which are neither approved nor disapproved pursuant to the provisions of subsection (7) of this section: PROVIDED, FURTHER, That if seasonal field conditions prevent the department from being able to properly evaluate the application, the department may issue an approval conditional upon further review within sixty days: PROVIDED, FURTHER, That the department shall have until April 1, 1975, to approve or disapprove an application involving forest practices allowed to continue to April 1, 1975, under the provisions of subsection (2) of this section. Upon receipt of any notification or any satisfactorily completed application the department shall in any event no later than two business days after such receipt transmit a copy to the departments of ecology and fish and wildlife, and to the county, city, or town in whose jurisdiction the forest practice is to be commenced. Any comments by such agencies shall be directed to the department of natural resources.

(6) If the county, city, or town believes that an application is inconsistent with this chapter, the forest practices regulations, or any local authority consistent with RCW 76.09.240 as now or hereafter amended, it may so notify the department and the applicant, specifying its objections.

(7) The department shall not approve portions of applications to which a county, city, or town objects if:

(a) The department receives written notice from the county, city, or town of such objections within fourteen business days from the time of transmittal of the application to the county, city, or town, or one day before the department acts on the application, whichever is later; and

(b) The objections relate to lands either:

(i) Platted after January 1, 1960; or

(ii) Being converted to another use.

The department shall either disapprove those portions of such application or appeal the county, city, or town objections to the appeals board. If the objections related to subparagraphs (b) (i) and (ii) of this subsection are based on local authority consistent with RCW 76.09.240 as now or hereafter amended, the department shall disapprove the application until such time as the county, city, or town consents to its approval or such disapproval is reversed on appeal. The applicant shall be a party to all department appeals of county, city, or town objections. Unless the county, city, or town either consents or has waived its rights under this subsection, the department shall not approve portions of an application affecting such lands until the minimum time for county, city, or town objections has expired.

(8) In addition to any rights under the above paragraph, the county, city, or town may appeal any department approval of an application with respect to any lands within its jurisdiction. The appeals board may suspend the department's approval in whole or in part pending such appeal where there exists potential for immediate and material damage to a public resource.

(9) Appeals under this section shall be made to the appeals board in the manner and time provided in RCW 76.09.220(8). In such appeals there shall be no presumption of correctness of either the county, city, or town or the department position.

(10) The department shall, within four business days notify the county, city, or town of all notifications, approvals, and disapprovals of an application affecting lands within the county, city, or town, except to the extent the county, city, or town has waived its right to such notice.

(11) A county, city, or town may waive in whole or in part its rights under this section, and may withdraw or modify any such waiver, at any time by written notice to the department.

Sec. 5. RCW 76.09.080 and 1989 c 175 s 163 are each amended to read as follows:

(1) The department shall have the authority to serve upon an operator a stop work order which shall be a final order of the department if:

(a) There is any violation of the provisions of this chapter or the forest practices regulations; or

(b) There is a deviation from the approved application; or

In cases where the department issues a stop work order under (c) of this subsection, the department shall, within two business days following the service of the stop work order on the operator, prepare and mail to the operator and landowner a written decision document which shall:

(i) Set forth in reasonable detail the basis for the department's conclusion that material damage will occur unless the stop work order is issued;

(ii) Identify all evidence relied upon by the department. Where evidence includes observations of department personnel or others, the observers shall be identified. Copies of any research results or other written authorities relied upon shall be included, or cited if commonly available; and

(iii) Identify the reasonable alternative actions, if any, which were considered and rejected, and discuss the reasons why the alternatives were not accepted.

(2) The stop work order shall set forth:

(a) The specific nature, extent, and time of the violation, deviation, damage, or potential damage;

(b) An order to stop all work connected with the violation, deviation, damage, or potential damage;

(c) The specific course of action needed to correct such violation or deviation or to prevent damage and to correct and/or compensate for damage to public resources which has resulted from any violation, unauthorized deviation, or willful or negligent disregard for potential damage to a public resource; and/or those courses of action necessary to prevent continuing damage to public resources where the damage is resulting from the forest practice activities but has not resulted from any violation, unauthorized deviation, or negligence; ((~~and~~))

(d) The right of the operator to a hearing before the appeals board; and

(e) Whether a written decision document is required under this section.

(3) The department shall immediately file a copy of ((~~such~~)) the stop work order with the appeals board and mail a copy thereof to the timber owner and forest land owner at the addresses shown on the application. The operator, timber owner, or forest land owner may commence an appeal to the appeals board within fifteen days after service upon the operator. If such appeal is commenced, a hearing shall be held not more than twenty days after copies of the notice of appeal were filed with the appeals board. Such proceeding shall be an adjudicative proceeding within the meaning of chapter 34.05 RCW, the Administrative Procedure Act, except that in cases where a written decision document is required under subsection (1)(c) of this section the department shall bear the burden of proving that the stop work order is necessary to prevent the continuation of or to avoid material damage to public resources and that no less restrictive or less costly measures are reasonably likely to accomplish the same. The department shall be limited in the appeal to presenting and supporting the evidence identified in the decision document. The operator shall comply with the order of the department immediately upon being served, but the appeals board if requested shall have authority to continue or discontinue in whole or in part the order of the department under such conditions as it may impose pending the outcome of the proceeding.

Sec. 6. RCW 76.09.090 and 1975 1st ex.s. c 200 s 6 are each amended to read as follows:

If a violation, a deviation, material damage or potential for material damage to a public resource has occurred and the department determines that a stop work order is unnecessary, then the department shall issue and serve upon the operator or land owner a notice((~~, which shall clearly set forth~~)) to comply.

(1) A notice to comply shall clearly set forth:

((~~(1)~~))(a) The specific nature, extent, and time of failure to comply with the approved application; or identifying the damage or potential damage; and/or

((~~(b)~~)) the relevant provisions of this chapter or of the forest practice regulations relating thereto;

((~~(2)~~)) (b) The right of the operator or land owner to a hearing before the department; and

((~~(3)~~)) (c) The specific course of action ordered by the department to be followed by the operator to correct such failure to comply and to prevent, correct and/or compensate for material damage to public resources which resulted from any violation, unauthorized deviation, or wilful or negligent disregard for potential damage to a public resource; and/or those courses of action necessary to prevent continuing damage to public resources where the damage is resulting from the forest practice activities but has not resulted from any violation, unauthorized deviation, or negligence.

(2) Prior to issuing a notice to comply other than one solely involving claimed violations or deviations from the forest practices act, forest practices regulations, or the terms and conditions of an approved application, the department shall prepare a written decision document and attach it to the notice. The decision document shall:

(a) Set forth in reasonable detail the basis for the department's conclusion that material damage will occur unless the notice to comply is issued;

(c) Identify any alternative conditions which were considered and rejected and the reasons such alternatives were not accepted.

(3) In an appeal of a notice to comply, the department shall bear the burden of proving that the notice to comply was necessary, and in cases covered by subsection (2) of this section, the department shall be limited in the appeal to the evidence identified in the decision document.

(4) The department shall mail a copy ((~~thereof~~)) of the notice, and decision document, if applicable, to the forest land owner and the timber owner at the addresses shown on the application, showing the date of service upon the operator. Such notice to comply shall become a final order of the department((~~: PROVIDED, That no direct appeal to the appeals board will be allowed from such final order~~)). Such operator shall undertake the course of action so ordered by the department unless, within fifteen days after the date of service of such notice to comply, the operator, forest land owner, or timber owner, ((~~shall~~)) requests the department in writing to schedule a hearing or files an appeal to the appeals board. If ((~~so requested,~~)) a hearing before the department is requested, the department shall schedule a hearing on a date not more than twenty days after receiving such request. Within ten days after such hearing, the department shall issue a final order either withdrawing its notice to comply or clearly setting forth the specific course of action to be followed by such operator. Such operator shall undertake the course of action so ordered by the department unless within thirty days after the date of such final order, the operator, forest land owner, or timber owner appeals such final order to the appeals board.

No person shall be under any obligation under this section to prevent, correct, or compensate for any damage to public resources which occurs more than one year after the date of completion of the forest practices operations involved exclusive of reforestation, unless such forest practices were not conducted in accordance with forest practices rules and regulations: PROVIDED, That this provision shall not relieve the forest land owner from any obligation to comply with forest practices rules and regulations pertaining to providing continuing road maintenance. No action to recover damages shall be taken under this section more than two years after the date the damage involved occurs.

NEW SECTION. Sec. 7. A new section is added to chapter 76.09 RCW to read as follows:

(1) The board shall not adopt permanent rules for the protection of endangered or threatened species of fish or wildlife, under RCW 76.09.040 or 76.09.050 or other authority, until a final recovery plan has been issued for the species.

(2) The board shall not adopt an emergency rule, under RCW 76.09.040 or 76.09.050 or other authority, to protect fish and wildlife unless:

(a) The species is an endangered species; and

(b) The board finds that in the absence of such an emergency rule, forest practices on nonpublic lands that are to be regulated by the proposed emergency rule would cause a material further decline in the species as a whole.

NEW SECTION. Sec. 8. A new section is added to chapter 76.09 RCW to read as follows:

(1) The board shall not adopt any rule that would materially limit commercial forest management of forest lands unless the board expressly finds that:

(a) The proposed rule fully assesses the feasibility of available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior;

(b) The proposed rule is based on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for and consequences of adopting such a rule;

(c) The restrictions on forest practices on nonpublic forest lands set forth in the proposed rule are reasonable and capable of being accomplished on nonpublic lands and comply with the regulatory fairness act, chapter 19.85 RCW;

(d) The restrictions on forest practices on nonpublic forest lands set forth in the proposed rule are not likely significantly to reduce private investments in the acquisition and retention of forest lands in the state or in silvicultural activities in the state, or to cause conversion of significant amounts of forest lands to nonforest uses;

(e) Based on its review of applicable law, including, but not limited to, the most recent advisory memorandum of the state attorney general issued under RCW 36.70A.370, the restrictions on forest practices on nonpublic forest lands set forth in the proposed rule will not result in a taking of private property without compensation; and

(f) The proposed rule includes a variance procedure for use by owners of parcels of land which are disproportionately affected by the rule as applied.

(2) In addition to the limitations set forth in subsection (1) of this section, the board shall not adopt any rule to protect fish and wildlife that would materially limit commercial forest management of forest lands unless the board expressly finds that:

(a) Protection of the species on public lands is inadequate;

(b) The proposed rule takes fully into account the protection of the species provided by:

(i) The other rules adopted by the board;

(ii) Cooperative plans protecting wildlife including, but not limited to, resource management plans and habitat conservation plans; and

(iii) Predictable forest land management practices that the board can reasonably anticipate will be carried out on the land involved based on historic practices, published resource management plans, and credible studies of expected future practices;

(c) The proposed rule has clearly identified specific life requisites of the affected species which cannot reasonably be met without regulation of forest practices on nonpublic lands; and

(d) The restrictions on forest practices on nonpublic forest lands set forth in the proposed rule are the least costly means of meeting the life requisites of the species.

(3) The board shall not adopt any rule requiring surveys of habitat to determine occupancy or nonoccupancy, or permitting or authorizing the department to reject applications or notifications as incomplete if they do not include survey information of fish and wildlife to determine occupancy or nonoccupancy. Any rules adopted by the board to protect fish or wildlife shall protect only known sites, as documented by the department of fish and wildlife in accordance with published protocols.

NEW SECTION. Sec. 9. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 10. Any rule adopted by the forest practices board after January 1, 1995, will be invalid unless readopted within ninety days by the board in accordance with the terms of this act. Any rule adopted by the board before January 1, 1995, but which by its terms incorporates by reference a designation, classification, or selection by any person or government agency which designation, classification, or selection occurs after January 1, 1995, shall be invalid to the extent it applies to such designation, classification, or selection unless readopted within ninety days by the board in accordance with the terms of this act.

NEW SECTION. Sec. 11. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.