WSR 98-20-020
EMERGENCY RULES
DEPARTMENT OF ECOLOGY
[Order 98-22--Filed September 25, 1998, 2:17 p.m.]
Date of Adoption: September 24, 1998.
Purpose: To adopt by reference modifications to the forest practices rules to provide more protection for federally listed threatened and endangered salmonids within the upper and lower Columbia and Snake River systems. This rule classifies forest practices in mapped areas as Class IV-Special, requiring additional environmental review. Includes revisions of type 2 and 3 streams that were mistyped and had been included in previous emergency rules.
Citation of Existing Rules Affected by this Order: Amending chapter 173-202 WAC.
Statutory Authority for Adoption: RCW 90.48.420 and 76.09.040.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: For stream typing, data shows many streams were mistyped and this emergency rule would correct those errors and provide protection commensurate with resource values and based on current information. Typing of streams affects protection measures. Salmonid part will provide additional protection through environmental review of salmonid species listed as threatened or endangered by the National Marine Fisheries Service. This action will help manage forestry activities that might negatively impact listed fish.
salmonids: The Forest Practices Board and the Department of Ecology find good cause for an emergency rule to protect salmonids. This document organizes and summarizes information presented to and discussed by the board, and discussed in public meetings. It is an attachment to ecology's "findings" in their rule-making order (A.O.98-22). The reasons for this finding are as follows:
1. salmonid needs
Biology: Salmonids have several life history phases which include spawning, rearing and migration. Fertilized salmonid eggs require sediment-free and cool water in order to incubate and hatch. Once the eggs hatch, the juvenile salmonids require rearing habitat which includes forage, clean cool water, and cover provided by rocks, banks and large woody debris. Finally, salmonids need to be able to have stream passage at all life history stages.
Factors Limiting Salmonid Habitat: In order to provide cool, clean water and habitat that includes pools, clean gravel and stable channels, the following habitat requirements are necessary in order to provide for healthy salmonids: Shade, stable stream banks, large woody debris, and fish passage.
Shade and Stream Temperature. Shade is needed to provide cool water temperatures. To achieve this, trees along the riparian zones of fish-bearing streams and along contributing nonfish bearing streams must be retained to assure that the solar radiation does not heat the streams to a point that limits the productivity, or in some severe cases, the mortality of salmonids. High temperatures can also block or delay fish migration.
The current state water quality standard for stream temperature is intended to fully protect salmonids. Shade must be retained, in order to keep water temperatures below 16° centigrade.
Other factors can increase temperature such as sediment deposition and resultant stream widening. Shade removal in nonfish bearing streams can also contribute to downstream temperature increases in fish-bearing waters. Shade removal can also impact cold groundwater sources and microclimate.
Stream Bank Stability and Forest Roads. Fine sediment in spawning gravel reduces the survival of salmonid eggs. Sediment can also limit the ability for juvenile and adult salmonids to feed. Stream bank instability is a major contributor of sediment to streams. Stability of stream banks is necessary to this as a source of sediment (if banks are disturbed they can introduce sediment). Forest roads can also contribute sediment laden water to streams from ditches and water crossings. Roads can also change hydrologic regime of the stream causing higher peak flows which can cause more sedimentation.
Large Woody Debris. Rearing or juvenile salmonids need pools and cover for refuge and desired feeding conditions. Stream morphology that contains adequate pools requires large woody debris (LWD) on a continuous basis. The LWD provides structure in the streams for the formation of pools and cover. It also moderates the movement of sediment. Trees from the adjacent riparian stand are an important source of large LWD.
Fish Passage. Adult fish need to move upstream to access spawning areas. Juvenile fish need to move upstream and downstream to find desirable feeding conditions or take refuge from undesirable environmental conditions. Forest road stream crossings often block fish passage.
Summary. The literature indicates that in order to protect bank stability, a thirty-foot buffer is recommended. In addition, to achieve 95% recruitment of the key piece wood, (wood that is large enough to start the forming of log jams indexed by stream size) approximately one hundred foot buffer is required. Additional buffers may be needed to account for areas that have high susceptibility to windthrow, provide additional large woody debris (LWD) recruitment, unstable slopes protection, protection of seeps, springs and stream associated wetlands. Other functions include microclimate (air temperature and humidity, etc.).
2. endangered species act listings and the forest practices act.
The Endangered Species Act (ESA) was enacted to conserve threatened and endangered species and the ecosystems upon which they depend. Four ESA listings have occurred in the last year. In August of 1997, Upper Columbia steelhead was listed as endangered and the Snake River Steelhead were listed as threatened. In March of 1998, the Lower Columbia steelhead was listed as threatened. Finally, in June 1998, the Columbia River bull trout was listed as threatened. (Note: The Forest Practices Board is in the process of establishing findings for the bull trout listing. They anticipate having this discussion at their November 10, 1998 meeting.)
ESA listings lead to "take" being prohibited. "Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in any such conduct. "Harm" can include significant habitat modification or degradation. In addition, the listing itself is indicative of the need to provide protection of the habitat required by these species to assure recovery of the species and protection from harm.
A governmental agency can be responsible for a take if it authorizes the activity that exacts a taking. In a March 1998 decision, the United States Court of Appeals for the First Circuit ordered a Massachusetts agency to prevent the taking of the Northern Right Whale, an endangered species. The court found whales could be harmed from entanglement in fishing gear from commercial fishing activities authorized by agency regulations. The court found the state licensed the commercial fishing in a manner likely to cause harm, even though its actions were only an indirect cause. Thus, the Forest Practices Board and the Department of Ecology could be vulnerable for take if permits continue to be approved without consideration of listed species protected from harm. Actions to enforce the ESA could be brought by the federal government or other third parties.
The ESA requires federal agencies to examine the impact of their actions on protected species. The Washington Forest Practices Board has been working with the United States Fish and Wildlife Service (USFWS) to have the existing state forest practice rules for the northern spotted owl recognized as part of a proposed federal rule providing protection of that species under the ESA. The USFWS has consulted with the National Marine Fisheries Service (NMFS) regarding how the anadromous (listed and proposed to be listed) fish may be impacted by the proposed federal rule. In a letter dated September 16, 1998, NMFS has concluded that the existing state forest practice rules "do not leave adequate riparian buffers to provide the important ecosystem functions necessary to support the biological requirements of anadromous salmonids." NMFS has indicated that "any further degradation of habitat conditions that reduces essential habitat functions may have a significant impact, which poses an unacceptable risk to the survival and recovery" of certain salmonid evolutionarily significant units (ESUs), including the Upper Columbia Steelhead addressed in the emergency rule.
Oregon had developed a plan to protect salmonids which was relied on by NMFS in its decision not to list certain species of salmonids as threatened. The Oregon plan was based largely on future actions and voluntary efforts. In June 1998, a federal court rejected this decision as inadequate to prevent endangerment to salmonids under the ESA. In Washington, the forest practice rules also rely on voluntary efforts. The watershed analysis process (chapter 222-22 WAC) is entirely voluntary. Voluntary efforts are not adequate to prevent endangerment to already listed salmonids. Emergency action is necessary because of the state's obligation to comply with the ESA. This emerging and unexpected development makes it clear that the existing rules are not adequate and the species are in jeopardy.
3. continuing to approve forest practices permits in listed areas.
Forest Practices Applications in Listed Areas: The listed areas of the state contain nearly 6 million acres of nonfederal land, of which about 2.2 million acres are state and private forest land covered by the current forest practice rules. Most of the habitat that salmonids seek for spawning and rearing are in the forested areas of the state. This portion of the habitat continues to be critical to the survival and well-being of these species.
When the ESA listings occurred, there were approximately 823 forest practices applications/notifications already approved in the listed areas. Since operations under these permits may have some impact on salmonid habitat, these applicants were sent letters notifying them of the listings. If they had questions, the letter said they should contact National Marine Fisheries Service directly for clarification whether their operations may cause a concern for listed steelhead.
Since the listings, one hundred twenty applications/notifications have been approved within two hundred feet of a listed salmonid water. These permits contain a note to applicants warning them that this state permit does not necessarily meet federal law under the ESA.
The department estimates that an additional 1,700 to 1,800 applications will be approved between now and when a permanent rule might be adopted and become effective (estimated to be July 1, 2000). Since permits are effective for a two-year period, applications approved prior to a new permanent rule taking effect in 2000 would be valid until 2002. Thus, nearly four years from now, some salmonid habitat would still be at risk absent an emergency rule.
The Forest Practices Act (chapter 76.09 RCW) requires protection of public resources. In order to protect these listed salmonids, the habitat associated with spawning, rearing and migration needs to be protected.
Current Forest Practices Rules Inadequate for Listed Salmonids: Current and newly-approved forest practice operations conducted under the existing rules could cause additional harm to ESA-listed salmonids because continued harvests in riparian areas would decrease shade, bank stability, and large woody debris, and continued road construction in these areas would also impact salmonid habitat. Specific impacts are categorized as follows:
Shade and Stream Temperature. Under the current forest practice rules, shade is required to meet current temperature criteria at 16 or 18 degrees centigrade. Currently, it is likely that shade is not fully provided on Type 3 streams because landowners only have to seek shade as far as the maximum width riparian management zone (RMZ). The maximum width RMZs for Type 3 streams are currently fifty feet on streams greater than five feet wide and twenty-five feet on streams that are less than five feet wide.
An additional factor where current rules are inadequate for meeting temperature requirements involves removal of shade in nonfish-bearing waters which contribute to the temperature of fish-bearing waters downstream. This removal of shade elevates the water temperature which then cumulatively elevates temperatures downstream.
Stream Bank Stability and Forest Roads. Under the current rules, bank stability may be protected. On the westside of the state, the protection only extends to twenty-five feet. On the eastside, the recommended protection is thirty feet. However, if shade is provided (meeting current shade rule) and leave tree requirements are met, additional tree removal that would provide bank stability is also possible.
Roads are currently covered by the current rules, however, existing information would lead us to believe that standards need to be upgraded and that roads are out of compliance with existing rules as much as half the time as documented in the 1991 Compliance Report prepared by Timber, Fish and Wildlife's Field Implementation Committee. Preliminary findings from an on-going internal audit by the Department of Natural Resources also show that construction of roads in certain areas of the state indicate that the minimum standards are not adequate to protect public resources.
Large Woody Debris. Under the current rules, large woody debris is provided at a minimal level in the current RMZ requirements. Leave trees are required within the current RMZs. However, the number required to be left is not based on the ability to improve this LWD function over time so that there is both near- and long-term continuous large woody debris recruitment. Nor are current rules sufficiently designed to assure that the correct size and amount of large woody debris can be provided. If a comparison of the current rules is made with the target identified in the habitat section above, the current rules can be assumed to be deficient for large woody debris.
Summary. Given the above information, current forest practices rules are deficient, particularly in providing LWD, adequate shade on small streams (including nonfish-bearing waters), bank stability and road contributions of sediment.
4. protecting public resources and class iv-special classification.
The public has a strong interest in protecting public resources, including water, fish, and wildlife, especially those listed as endangered and threatened species. Immediate action is necessary to ensure that impacts from forest practices in the salmonid listed areas are carefully evaluated while the board is in the process of adopting permanent rules. Without an emergency rule, habitat of these threatened and endangered species could be significantly impacted by forest practices.
The Forest Practices Act requires that forest practices which have the potential for a substantial impact on the environment be classified as Class IV so that they receive additional environmental review under the State Environmental Policy Act (chapter 43.21C RCW). SEPA recognizes the critical importance of restoring and maintaining environmental quality to the public welfare and the importance of full disclosure of adverse environmental impacts caused by agency actions. The Forest Practices Board is obligated under the law to identify those forest practices that have potential for substantial impact on the environment and classify them as Class IV-Special so that additional SEPA review is conducted. If there is the potential for damage to the habitat of a state or federal listed species, then there is potential for substantial impact on the environment. An emergency rule would not necessarily prohibit harvest; it would require additional review to evaluate environmental impacts. This process includes public notice and a public comment period.
As described above, certain forest practices in the salmonid listed areas have the potential for impact on listed salmonids. This impact is substantial because of the number of forest practices in the listed areas and because the current rules are inadequate. Absent permanent rules that adequately prevent these impacts, RCW 76.09.050 and SEPA require the emergency rule change in classification.
5. state water quality requirements.
The intent of the Forest Practices Act is to meet water quality standards under the Water Pollution Control Act. As indicated by the number of water bodies listed under section 303(d) of the Clean Water Act, water quality standards are not being met. Temperature increases attributed to forestry activities cause 303(d) listings. In 1996, streams with elevated temperatures comprised the largest group on the entire 303(d) list. Temperature limits in the water quality standards are intended to fully protect in-stream beneficial uses by preventing any decrease in salmonid health or reproductive success. This goal is consistent with the state water quality antidegradation regulatory requirements. These requirements demand that the beneficial in-stream uses, such as salmonid habitat, be fully protected. Changes in water quality are not allowed that violate the standards set to fully protect these uses. Further, degradation of water quality, even where it does not cause a violation of the standards, is not allowed unless all known, available, and reasonable best management practices are being used to reduce the affect on water quality; and the activity has been found to be in the overriding public interest.
6. rule making files.
The Forest Practices Board and Department of Ecology maintain rule-making files for this emergency rule that have detailed background information supporting these findings. Please contact Judith Holter, Department of Natural Resources at (360) 902-1412 or Doug Rushton, Department of Ecology at (360) 407-6180 if you would like to inspect these files.
stream typing part of emergency rule: The Forest Practices Board and the Department of Ecology find good cause for an emergency to modify the water typing rules. This document organizes and summarizes information presented to and discussed by the board in public meetings. It is an attachment to ecology's "findings" in their rule-making order (A.O.98-22).
The reasons for findings are as follows:
New data have shown that the physical characteristics of streams, as defined in the current forest practices rules, are no longer accurate. Accurate water typing is critical to public resource protection. This emergency rule updates those physical characteristics based on current knowledge so that appropriate resource protection can be provided to fish habitat and water quality.
This emergency rule establishes presumptions for determining fish use in the absence of field verification and is necessary during permanent rule making updating the water type rules and associated riparian protection. Because water typing triggers riparian protection through the forest practices rules, watershed analysis, and some local land use decisions, the definitions used to determine water types must reflect current knowledge about fish use and habitat. Due to significant field verification of water types and research, more is known today about fish distribution and the physical characteristics of fish habitat than was known when the existing water type definitions were written (see WAC 222-16-030). In addition, the 303(d) water quality and potential ESA listings cause increased pressure on the forest practices regulation system that will result in increased cost and complexities for all participants. If the water typing system is not upgraded immediately, it will contribute to potential listings and increase the associated burdens of such listings.
In August 1994, the Point-No-Point Treaty Council published a report, Stream Typing Errors in Washington Water Type Maps for Watersheds of Hood Canal and the Southwest Olympic Peninsula. Simultaneously, the Quinault Indian Nation and the Department of Fish and Wildlife were also reviewing water types in the southwest part of the Olympic Peninsula. Data from these studies indicated that seventy-two percent of the type 4 streams were actually type 2 or 3 streams. In addition, projects funded by the United States Fish and Wildlife Service with cooperation from some western Cascade landowners and Washington trout have also resulted in significant upgrades.
The intent of the Forest Practices Act is to meet water quality standards under the Clean Water Act. As indicated by the number of water bodies listed under section 303(d) of the Clean Water Act, water quality standards are not being met. The number of water bodies included on the Department of Ecology's 303(d) water quality limited list has increased and now includes many forested streams. Numerous fish stocks are being considered for listing under the Endangered Species Act. The state has water quality antidegradation regulatory requirements. These requirements demand that the beneficial in-stream uses, such as salmonid habitat, be fully protected. Changes in water quality are not allowed that violate the standards set to fully protect these uses. Further, degradation of water quality, even where it does not cause a violation of the standards, is not allowed unless all known, available, and reasonable best management practices are being used to reduce the affect on water quality; and the activity has been found to be in the overriding public interest. Water quality standards cannot be met if inaccurate stream typing information is used in assessing the impacts of forest practices, since protection measures are based, in part, on stream types.
The public has a strong interest in protecting public resources, including water, and fish, especially those listed as endangered and threatened species. Immediate action is necessary to ensure that impacts from forest practices near water are carefully evaluated while the board and ecology are in the process of adopting permanent rules. Without an emergency rule, public resources, including the habitat of threatened and endangered species, could be significantly impacted by forest practices because of incorrect water typing and resultant inappropriate protection levels.
In this emergency rule process, the Forest Practices Board has separate rules for water typing and salmonids. Ecology combined the two. The Forest Practices Board and Department of Ecology maintain rule-making files for this emergency rule that have detailed background information supporting these findings. Please contact Judith Holter, Department of Natural Resources at (360) 902-1412 or Doug Rushton, Department of Ecology at (360) 407-6180 if you would like to inspect these files.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, amended 1, repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.
Effective Date of Rule: Immediately.
September 24, 1998
Tom Fitzsimmons
Director
OTS-2308.2
AMENDATORY SECTION (Amending Order 97-46, filed 3/30/98, effective 4/30/98)
WAC 173-202-020 Certain WAC sections adopted by reference.
The following sections of the Washington Administrative Code
existing on ((March 13)) September 25, 1998, are hereby adopted
by reference as part of this chapter in all respects as though
the sections were set forth herein in full:
WAC 222-08-035--Continuing review of forest practices regulations.
WAC 222-10-020--.*SEPA policies for certain forest practices within 200 feet of a Type 1 Water.
WAC 222-10-040--Class IV-Special threatened and endangered species SEPA policies.
WAC 222-10-043--.*Salmonids.
WAC 222-12-010--Authority.
WAC 222-12-040--Alternate plans.
WAC 222-12-045--Adaptive management.
WAC 222-12-046--Cumulative effect.
WAC 222-12-070--Enforcement policy.
WAC 222-12-090--Forest practices board manual.
WAC 222-16-010--General definitions.
WAC 222-16-030--Water typing system.
WAC 222-16-035--Wetland typing system.
WAC 222-16-050 (1)(a), (1)(e), (1)(h), (1)(i), (1)(j), (3)(b), (3)(c), (3)(d), (3)(e), (3)(f), (3)(n), (3)(o), (3)(p), (4)(c), (4)(d), (4)(e), (5)(b), (5)(c), (5)(d), (5)(e), (5)(f), (5)(h), (5)(n), (5)(o)--Classes of forest practices.
WAC 222-16-070--Pesticide uses with the potential for a substantial impact on the environment.
WAC 222-16-080 (1)(k)--.*Salmonids-harvesting, road construction, aerial applications of pesticides, or site preparation, within the areas on the salmonid listed map in WAC 222-16-088, within 100 feet of a type 1, 2, or 3 water.
WAC 222-16-088--.*Salmonid listed areas.
WAC 222-22-010--Policy.
WAC 222-22-020--Watershed administrative units.
WAC 222-22-030--Qualification of watershed resource analysts, specialists, and field managers.
WAC 222-22-040--Watershed prioritization.
WAC 222-22-050--Level 1 watershed resource assessment.
WAC 222-22-060--Level 2 watershed resource assessment.
WAC 222-22-070--Prescription recommendation.
WAC 222-22-080--Approval of watershed analysis.
WAC 222-22-090--Use and review of watershed analysis.
WAC 222-22-100--Application review prior to watershed analysis.
WAC 222-24-010--Policy.
WAC 222-24-020 (2), (3), (4), (6)--Road location.
WAC 222-24-025 (2), (5), (6), (7), (8), (9), (10)--Road design.
WAC 222-24-030 (2), (4), (5), (6), (7), (8), (9)--Road construction.
WAC 222-24-035 (1), (2)(c), (2)(d), (2)(e), (2)(f)--Landing location and construction.
WAC 222-24-040 (1), (2), (3), (4)--Water crossing structures.
WAC 222-24-050--Road maintenance.
WAC 222-24-060 (1), (2), (3), (6)--Rock quarries, gravel pits, borrow pits, and spoil disposal areas.
WAC 222-30-010--Policy--Timber harvesting.
WAC 222-30-020 (2), (3), (4), (5), (7)(a), (7)(e), (7)(f), (8)(c)--Harvest unit planning and design.
WAC 222-30-025--Green-up: Even-aged harvest size and timing.
WAC 222-30-030--Stream bank integrity.
WAC 222-30-040--Shade requirements to maintain stream temperature.
WAC 222-30-050 (1), (2), (3)--Felling and bucking.
WAC 222-30-060 (1), (2), (3), (5)(c)--Cable yarding.
WAC 222-30-070 (1), (2), (3), (4), (5), (7), (8), (9)--Tractor and wheeled skidding systems.
WAC 222-30-080 (1), (2)--Landing cleanup.
WAC 222-30-100 (1)(a), (1)(c), (4), (5)--Slash disposal.
WAC 222-34-040--Site preparation and rehabilitation.
WAC 222-38-010--Policy--Forest chemicals.
WAC 222-38-020--Handling, storage, and application of pesticides.
WAC 222-38-030--Handling, storage, and application of fertilizers.
WAC 222-38-040--Handling, storage, and application of other forest chemicals.
[Statutory Authority: RCW 90.48.420, 76.09.040 and chapter 34.05 RCW. 98-08-058 (Order 97-46), § 173-202-020, filed 3/30/98, effective 4/30/98. Statutory Authority: RCW 90.48.420, 76.09.040, [76.09.]050 and chapter 34.05 RCW. 98-07-026 (Order 97-41), § 173-202-020, filed 3/10/98, effective 4/10/98. Statutory Authority: RCW 90.48.420 and 76.09.040. 94-17-011, § 173-202-020, filed 8/8/94, effective 9/8/94; 93-11-062, § 173-202-020, filed 5/13/93, effective 6/13/93; 93-01-091 (Order 92-51), § 173-202-020, filed 12/16/92, effective 1/16/93. Statutory Authority: Chapters 90.48 and 76.09 RCW. 92-14-098, § 173-202-020, filed 6/30/92, effective 8/1/92. Statutory Authority: Chapter 76.09 RCW. 88-22-030 (Order 88-19), § 173-202-020, filed 10/27/88. Statutory Authority: RCW 76.09.040. 87-23-017 (Order 87-5), § 173-202-020, filed 11/10/87, effective 1/1/88; 83-15-045 (Order DE 82-37), § 173-202-020, filed 7/19/83; Order DE 76-32, § 173-202-020, filed 7/13/76.]