BILL REQ. #:  H-4912.1 

READ FIRST TIME 02/03/10.   

     AN ACT Relating to maximizing the ecosystem services provided by forestry through the promotion of the economic success of the forest products industry; amending RCW 76.09.040; reenacting and amending RCW 76.09.020; adding new sections to chapter 76.09 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1    (1) The legislature finds that commercial forestry produces jobs and revenue while also providing clean water, clean air, renewable energy, wildlife habitat, open space, and carbon storage. For these reasons, maintaining a base of forest lands that may be utilized for commercial forestry is of utmost importance to the state.
     (2) The legislature finds that the promotion and fostering of the economic success of the forest products industry with the goal of keeping forestry as a priority land use, and helping to secure the timber managing, growing, harvesting, transporting, and manufacturing jobs is made possible by a vibrant working forest land base.

Sec. 2   RCW 76.09.040 and 2009 c 246 s 1 are each amended to read as follows:
     (1)(a) Where necessary to accomplish the purposes and policies stated in RCW 76.09.010, and to implement the provisions of this chapter, the board shall adopt forest practices rules pursuant to chapter 34.05 RCW and in accordance with the procedures enumerated in this section that:
     (((a))) (i) Establish minimum standards for forest practices;
     (((b))) (ii) Provide procedures for the voluntary development of resource management plans which may be adopted as an alternative to the minimum standards in (a)(i) of this subsection if the plan is consistent with the purposes and policies stated in RCW 76.09.010 and the plan meets or exceeds the objectives of the minimum standards;
     (((c))) (iii) Set forth necessary administrative provisions;
     (((d))) (iv) Establish procedures for the collection and administration of forest practice fees as set forth by this chapter; and
     (((e))) (v) Allow for the development of watershed analyses.
     (b) Forest practices rules pertaining to water quality protection shall be adopted by the board after reaching agreement with the director of the department of ecology or the director's designee on the board with respect thereto. All other forest practices rules shall be adopted by the board.
     (c) Forest practices rules shall be administered and enforced by either the department or the local governmental entity as provided in this chapter. Such rules shall be adopted and administered so as to give consideration to all purposes and policies set forth in RCW 76.09.010.
     (2)(a) The board shall prepare proposed forest practices rules consistent with this section, section 4 of this act, and chapter 34.05 RCW. In addition to any forest practices rules relating to water quality protection proposed by the board, the department of ecology may submit to the board proposed forest practices rules relating to water quality protection.
     (b)(i) Prior to initiating the rule-making process, the proposed rules shall be submitted for review and comments to the department of fish and wildlife and to the counties of the state. After receipt of the proposed forest practices rules, the department of fish and wildlife and the counties of the state shall have thirty days in which to review and submit comments to the board, and to the department of ecology with respect to its proposed rules relating to water quality protection.
     (ii) After the expiration of ((such)) the thirty day period, the board and the department of ecology shall jointly hold one or more hearings on the proposed rules pursuant to chapter 34.05 RCW. ((At such hearing(s))) Any county representative may propose specific forest practices rules relating to problems existing within ((such)) the county at the hearings.
     (iii) The board may adopt and the department of ecology may approve such proposals if they find the proposals are consistent with the purposes and policies of this chapter.
     (3)(a) The board shall establish by rule a program for the acquisition of riparian open space and critical habitat for threatened or endangered species as designated by the board. Acquisition must be a conservation easement. Lands eligible for acquisition are forest lands within unconfined channel migration zones or forest lands containing critical habitat for threatened or endangered species as designated by the board. Once acquired, these lands may be held and managed by the department, transferred to another state agency, transferred to an appropriate local government agency, or transferred to a private nonprofit nature conservancy corporation, as defined in RCW 64.04.130, in fee or transfer of management obligation. The board shall adopt rules governing the acquisition by the state or donation to the state of such interest in lands including the right of refusal if the lands are subject to unacceptable liabilities. The rules shall include definitions of qualifying lands, priorities for acquisition, and provide for the opportunity to transfer such lands with limited warranties and with a description of boundaries that does not require full surveys where the cost of securing the surveys would be unreasonable in relation to the value of the lands conveyed. The rules shall provide for the management of the lands for ecological protection or fisheries enhancement. For the purposes of conservation easements entered into under this section, the following apply: (((a))) (i) For conveyances of a conservation easement in which the landowner conveys an interest in the trees only, the compensation must include the timber value component, as determined by the cruised volume of any timber located within the channel migration zone or critical habitat for threatened or endangered species as designated by the board, multiplied by the appropriate quality code stumpage value for timber of the same species shown on the appropriate table used for timber harvest excise tax purposes under RCW 84.33.091; (((b))) (ii) for conveyances of a conservation easement in which the landowner conveys interests in both land and trees, the compensation must include the timber value component in (a)(i) of this subsection plus such portion of the land value component as determined just and equitable by the department. The land value component must be the acreage of qualifying channel migration zone or critical habitat for threatened or endangered species as determined by the board, to be conveyed, multiplied by the average per acre value of all commercial forest land in western Washington or the average for eastern Washington, whichever average is applicable to the qualifying lands. The department must determine the western and eastern Washington averages based on the land value tables established by RCW 84.33.140 and revised annually by the department of revenue.
     (((4))) (b) Subject to appropriations sufficient to cover the cost of such an acquisition program and the related costs of administering the program, the department must establish a conservation easement in land that an owner tenders for purchase; provided that such lands have been taxed as forest lands and are located within an unconfined channel migration zone or contain critical habitat for threatened or endangered species as designated by the board. Lands acquired under this section shall become riparian or habitat open space. These acquisitions shall not be deemed to trigger the compensating tax of chapters 84.33 and 84.34 RCW.
     (((5))) (c) Instead of offering to sell interests in qualifying lands, owners may elect to donate the interests to the state.
     (((6))) (d) Any acquired interest in qualifying lands by the state under this section shall be managed as riparian open space or critical habitat.

NEW SECTION.  Sec. 3   A new section is added to chapter 76.09 RCW to read as follows:
     (1) The board shall execute a memorandum of understanding with the northwest environmental forum at the University of Washington's school of forest resources, or its successor institute, to serve as the forestry incentives panel.
     (2) The board shall submit to the panel by October 31st of every even-numbered year a report that outlines a work plan and identifies anticipated conservation topics that the board may address in the subsequent four-year period that may have economic consequences for landowners or the forest products industry. The biennial submission must represent the subject areas that the board expects to consider, and in no way creates a binding expectation that the topics identified will be addressed.
     (3)(a) For each biennial submission by the board, the panel shall evaluate the topics identified by the board and attempt to develop nonregulatory incentives that encourage landowners to undertake efforts designed to address the environmental objectives of the topics.
     (b) If the panel develops appropriate incentives, it shall provide recommendations for implementation of the incentives to the appropriate governmental entity, including the board, the commissioner, other relevant state agencies, local governments, the governor, the state legislature, and the state's congressional delegation.
     (4) The panel, in conjunction with the board, and any other appropriate implementing agency or entity, shall measure and monitor the resource protection outcomes of any implemented incentive developed and recommended by the panel.

NEW SECTION.  Sec. 4   A new section is added to chapter 76.09 RCW to read as follows:
     (1) Prior to adopting new forest practices rules under RCW 76.09.040, the board is required to consider the outcomes from any existing program that provides incentives for landowners to invest in voluntary conservation measures, including the outcomes monitored by the panel under section 3 of this act, and determine the consistency of the measures' outcomes with the desired outcomes of the proposed rules. The board must, when deemed appropriate by the board, include in its consideration an evaluation of existing voluntary conservation measures to determine whether or not, or to what degree, the intended outcomes are being achieved through voluntary measures.
     (2) When considering voluntary conservation measures that require public funding, the board shall include in its consideration whether adequate funding for the initiative has been concurrently secured.
     (3) This section is intended only to inform future rule making of the board. Nothing in this section creates a requirement on the board beyond the consideration of existing incentives and how they may or may not be relevant in the rule development process. The final determination regarding adequate compliance with this section shall belong to the board, and nothing in this section may be used to compel delayed or discontinued rule making.

Sec. 5   RCW 76.09.020 and 2009 c 354 s 5 and 2009 c 246 s 4 are each reenacted and amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Adaptive management" means reliance on scientific methods to test the results of actions taken so that the management and related policy can be changed promptly and appropriately.
     (2) "Appeals board" means the forest practices appeals board created by RCW 76.09.210.
     (3) "Application" means the application required pursuant to RCW 76.09.050.
     (4) "Aquatic resources" includes water quality, salmon, other species of the vertebrate classes Cephalaspidomorphi and Osteichthyes identified in the forests and fish report, 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.
     (5) "Board" means the forest practices board created in RCW 76.09.030.
     (6) "Commissioner" means the commissioner of public lands.
     (7) "Contiguous" 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.
     (8) "Conversion to a use other than commercial timber operation" means a bona fide conversion to an active use which is incompatible with timber growing and as may be defined by forest practices rules.
     (9) "Department" means the department of natural resources.
     (10) "Fish passage barrier" means any artificial instream structure that impedes the free passage of fish.
     (11) "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. Forest land does not include agricultural land that is or was enrolled in the conservation reserve enhancement program by contract if such agricultural land was historically used for agricultural purposes and the landowner intends to continue to use the land for agricultural purposes in the future. As it applies to the operation of the road maintenance and abandonment plan element of the forest practices rules on small forest landowners, the term "forest land" excludes:
     (a) Residential home sites, which may include up to five acres; and
     (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.
     (12) "Forest landowner" 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. 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.
     (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:
     (a) Road and trail construction;
     (b) Harvesting, final and intermediate;
     (c) Precommercial thinning;
     (d) Reforestation;
     (e) Fertilization;
     (f) Prevention and suppression of diseases and insects;
     (g) Salvage of trees; and
     (h) Brush control.
"Forest practice" shall 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.
     (14) "Forest practices rules" means any rules adopted pursuant to RCW 76.09.040.
     (15) "Forest road," as it applies to the operation of the road maintenance and abandonment plan element of the forest practices rules on small forest landowners, means a road or road segment that crosses land that meets the definition of forest land, but excludes residential access roads.
     (16) "Forest trees" does not include hardwood trees cultivated by agricultural methods in growing cycles shorter than fifteen years if the trees were 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. "Forest trees" includes Christmas trees, but does not include Christmas trees that are cultivated by agricultural methods, as that term is defined in RCW 84.33.035.
     (17) "Forests and fish report" means the forests and fish report to the board dated April 29, 1999.
     (18) "Operator" means any person engaging in forest practices except an employee with wages as his or her sole compensation.
     (19) "Person" 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.
     (20) "Public resources" means water, fish and wildlife, and in addition shall mean capital improvements of the state or its political subdivisions.
     (21) "Small forest landowner" has the same meaning as defined in RCW 76.09.450.
     (22) "Timber" means forest trees, standing or down, of a commercial species, including Christmas trees. However, "timber" does not include Christmas trees that are cultivated by agricultural methods, as that term is defined in RCW 84.33.035.
     (23) "Timber owner" 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 mean the contract purchaser.
     (24) "Unconfined channel migration zone" means the area within which the active channel of an unconfined stream is prone to move and where the movement would result in a potential near-term loss of riparian forest adjacent to the stream. Sizeable islands with productive timber may exist within the zone.
     (25) "Unconfined stream" means generally fifth order or larger waters that experience abrupt shifts in channel location, creating a complex floodplain 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.
     (26) "Panel" means the forestry incentives panel formed in section 3 of this act.