WSR 00-08-103

PROPOSED RULES

FOREST PRACTICES BOARD


[ Filed April 5, 2000, 10:24 a.m. ]

Continuance of WSR 98-21-015, 99-09-078 and 99-22-032.

Preproposal statement of inquiry was filed as WSR 98-16-099.

Title of Rule: Amendments to forest practices rules, Title 222 WAC.

Purpose: Current forest practices rules are not providing adequate protection for salmon and other public resources. The Forest Practices Board and the Department of Natural Resources face many new resource protection challenges, the most significant of which are the current and proposed listings of salmonids under the federal Endangered Species Act (ESA) and water quality-limited waters under the federal Clean Water Act (CWA).

At its September 22, 1998, [meeting] the Forest Practices Board approved the following goals for this rule package:

1. To provide compliance with the Endangered Species Act for aquatic and riparian-dependent species;

2. To restore and maintain riparian habitat on state and private forest lands to support a harvestable supply of fish;

3. To meet the requirements of the Clean Water Act for water quality on state and private forest lands; and

4. To keep the timber industry economically viable in Washington.

The Forest Practices Board adopted new emergency rules which became effective March 20, 2000. The Salmon Recovery Act (ESHB 2091) allows these emergency rules to be in place until new permanent forest practices rules are adopted or until June 30, 2001, whichever is sooner.

The Forest Practices Board is conducting rule making on a comprehensive package of new and revised permanent rules. The board selected a preferred alternative (based on the Forests and Fish Report, April 29, 1999) and a draft environmental impact statement analyzing the environmental effects of current rules, the preferred alternative, and a third alternative, was published on March 20, 2000.

After public review of the draft EIS, the Forest Practices Board will be preparing draft permanent rules which will be filed as a supplemental notice in the fall of 2000. Public hearings will be held state-wide in October 2000. The permanent rule proposal will then be finalized in early 2001, and adoption is slated for April 2001.

For more information and the latest rule adoption schedule, check the Forest Practices Board web site at www.wa.gov/dnr.

Statutory Authority for Adoption: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050.

Statute Being Implemented: Chapter 76.09 RCW.

Summary: Modify forest practices rules (Title 222 WAC) to incorporate new public resource protection requirements. Categories of rules include riparian protection for fish-bearing and nonfish-bearing streams; water typing; wetlands; Class IV-Special; SEPA guidance; application procedures; roads; slope stability; forest chemicals; enforcement; monitoring; adaptive management; and watershed analysis.

Citation of existing rules amended by this order: WAC 222-08-035 Continuing review of forest practices rules, 222-12-045 Adaptive management, 222-12-090 Forest practices board manual, 222-16-010 General definitions, 222-16-030 Water typing system, 222-16-050 Classes of forest practices, 222-20-010 Applications and notifications -- Policy, 222-20-020 Application time limits, 222-20-070 Emergency forest practices plan, 222-22-010 Policy-watershed analysis, 222-22-030 Qualification of analysts, 222-22-040 Watershed prioritization, 222-22-050 Level 1 watershed assessment, 222-22-060 Level 2 watershed assessment, 222-22-070 Prescription recommendation, 222-22-090 Use and review, 222-24-010 Policy-road construction, 222-24-020 Road location and design, 222-24-030 Road construction, 222-24-035 Landing location and construction, 222-24-040 Water crossing structures, 222-24-050 Road maintenance, 222-24-060 Rock quarries, etc., 222-30-010 Policy-timber harvesting, 222-30-020 Harvest unit planning and design, 222-30-070 Tractor and wheeled skidding systems, 222-38-020 Handling, storage, and aerial application of pesticides, 222-38-030 Handling, storage, and aerial application of fertilizers, 222-46-060 Civil penalties, and 222-46-065 Base penalty schedule.

New sections added: WAC 222-10-020 SEPA policies for certain forest practices within 200 feet of a Type S water, 222-10-030 Class IV-Special construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas or timber harvest on unstable landforms or slide prone areas SEPA policies, 222-12-044 Cooperative opportunities, 222-20-015 Multi-year permits, 222-22-035 Watershed screening, 222-22-065 Review of assessments, 222-22-075 Monitoring, 222-22-076 Restoration, and 222-46-055 Compensation for resource damages.

Reasons Supporting Proposal: Modifications to rules are needed to better protect Washington's public resources. See Purpose above.

Name of Agency Personnel Responsible for Drafting: Judith Holter, 1111 Washington Street S.E., Olympia, WA 98504-7012, (360) 902-1412; Implementation and Enforcement: Catherine Elliott, 1111 Washington Street S.E., Olympia, WA 98504-7012, (360) 902-1041.

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: The proposed rule:

Revises the water typing system used to identify fish-bearing and nonfish-bearing streams so that more adequate protection is provided for fish habitat.
Provides a five-year forest practices permit for landowners who have completed watershed analysis or who have submitted an application for a road maintenance and abandonment plan that will take longer than two years to implement.
Adds shorelines of the state to the Class IV-Special list and gives SEPA guidance for the applicant to follow.
Expands the Class IV-Special SEPA trigger for unstable slopes, gives SEPA guidance, and adds twenty-four definitions related to unstable slopes.
Revises riparian management zone requirements for eastern and western Washington, and includes options for possible buffer widths.
Presents options for variable buffer widths for aerial application of pesticides and adds best management practices to the Forest Practices Board manual.
Adds best management practices related to roads to the FPB manual; revises requirements for road location and design, relief drainage structures, water crossing structures, and road maintenance and abandonment.
Makes watershed analysis a more public process; allows DNR to write the prescriptions if the prescription team does not reach consensus; requires a prescription monitoring plan.
Enables DNR to develop a schedule of penalties for compensation of resource damages where there has been material damage to public resources; adds a base penalty of $10,000 for operating without an approved forest practices permit.
Expands adaptive management requirements by formally establishing the cooperative monitoring, evaluation, and research (CMER) committee of TFW and charging them with implementing adaptive management based on scientific findings; encourages cooperative opportunities for working with the board.

The anticipated effects for these rules include improved water quality and fish habitat, as well as better overall protection of public resources while maintaining a viable forest products industry.

Proposal Changes the Following Existing Rules:

Rule Category WAC 222 Current Rules - No Change Alternative Initial Draft Alternative - Summary of Additions and Revisions
Adaptive Management 08-035,

12-044, 12-045

Expands adaptive management by spelling out CMER's reporting responsibilities and its relationship to the board. Adds a new section on cooperative opportunities.
FPB Manual 12-090 Adds guidelines for roads, aerial applications of pesticides, channel disturbance zones.
Definitions 16-010 Adds thirty-six definitions: Twenty-four for unstable slopes; others for roads, RMZ, pesticides.
Water Typing 16-030 Types 1 through 5 waters New water typing system provides three categories: S=shorelines; F=fish-habitat waters; N=nonfish-habitat waters; fish habitat is defined.
Class IV-Special & SEPA Guidance 16-050,

10-020,

10-030

9 categories listed for Class IV-Special designation Adds certain fp operations w/in two hundred feet of a Type S water to the IV-Special list; changes how roads and harvesting on unstable slopes are triggered - focuses on high and moderate hazard areas; new SEPA guidance sections written for shorelines and unstable slopes.
Applications: Multi-year Permits 20-015,

20-020,

20-010,

20-070

Permits are valid for two years Five year permit option for landowners within a completed watershed analysis; multi-year permit provided for road maintenance and abandonment plans.

Name of operator and notice to the department required to begin forest practices operations.

Plan for emergency forest practices required with road maintenance plan.

Watershed Analysis 22-010 to 22-076 Process and requirements for watershed analysis are prescribed New sections for watershed screening (WAC 222-22-035), review of assessments (WAC 222-22-065), monitoring (WAC 222-22-075) and restoration (WAC 222-22-076). Revisions include making watershed analysis a public process; authorizing the department to write prescriptions if the prescription team takes longer than the thirty days provided; adds a cross reference to multi-year permits.
Roads 24-010 to 24-060 Road plans required upon dept. request Adds mandatory road maintenance and abandonment plan requirements; revises road design and water crossing sections; adapts road information to new water typing system; provides HPA requirements for nonfish-habitat waters; outcome-based standards clarified.

No roads are allowed through bogs and wetlands policy in relation to roads is clarified: No net loss of wetland functions and mitigation sequence is given; BMPs to be written for FPB manual.

Riparian Management Zones 30-010, 30-020, 30-070 W. Wash: 25' to 100'

E. Wash: 30'-300'

+ leave tree requirements

Revises riparian management zone requirements (RMZs) on fish-habitat waters:

W. Wash: 100' no-harvest; SPTH 10-40 trees/acre; management w/in 100' alternate plan

E. Wash: 100' no-harvest buffer/SPTH; management w/in 100' for fire, disease as altern. plan

Revises RMZs on nonfish-habitat waters that are perennial:

Option 1 - 500' no harvest above fish-habitat type changes sensitive sites provisions

50% shade -- stream length

30' equipment limitation zone everywhere else, including seasonal streams

OR: Option 2 -

2/3 SPTH on perennial Ns

1/2 SPTH on seasonal Ns

Pesticides 38-020

38-030

50' buffers Three buffer options provided for aerial application of pesticides: Two hundred fifty feet; fifty to three hundred twenty-five feet, fifty feet for Type N; technical details to be placed in FPB manual.
Enforcement 46-055, 46-060, 46-065 Increases civil penalty for operating without permit; adds compensation requirement for resource damage assessment; eliminates one step of remission/mitigation for civil penalties.

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

Small Business Economic Impact Statement

[The small business economic impact statement was filed with the original notice on October 12, 1998, and published in issue 98-23.]

A copy of the statement may be obtained by writing to Forest Practices Board Recording Secretary, Department of Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia, WA 90504[98504]-7012, phone (360) 902-1413, fax (360) 902-1730, e-mail forest.practicesboard@wadnr.gov.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. Some of the sections proposed are significant legislative rules.

Hearing Location: Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA, on October 25, 2000, at 3 p.m.

Assistance for Persons with Disabilities: Contact Forest Practices Board Secretary, (360) 902-1413, by October 1, 2000, TTY (360) 902-1125.

Submit Written Comments to: Judith Holter, Department of Natural Resources, Forest Practices Division, fax (360) 902-1789, by October 26, 2000.

Date of Intended Adoption: April 11, 2001. See Purpose above.

April 3, 2000

John P. Daly

Chair

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 00-09 issue of the Register.

Washington State Code Reviser's Office