PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 03-18-040.
Title of Rule: Marbled murrelet surveys.
Purpose: Amend forest practices rules (Title 222 WAC) to incorporate the Pacific Seabird Group (PSG) protocol entitled, "Methods for surveying marbled murrelets in forests: A revised protocol for land management and research," January 6, 2003, as the standard for surveying for marbled murrelets in forest stands.
Statutory Authority for Adoption: The Forest Practices Board's authority to adopt forest practices rules is granted under RCW 76.09.040 and 76.09.050.
Statute Being Implemented: Title [Chapter] 76.09 RCW.
Summary: The proposal amends WAC 222-12-090 and 222-16-010 to establish the use of the January 6, 2003, PSG survey protocol for marbled murrelet surveys, add a third-year survey option for determining whether a forest stand is a defined occupied marbled murrelet site, and correct a mislabeling of a graphic in the definition of marbled murrelet detection area.
Reasons Supporting Proposal: The 2003 PSG survey protocol and the third-year survey option are expected to increase accuracy in determining marbled murrelet occupancy in a forest stand.
Name of Agency Personnel Responsible for Drafting: Ashley DeMoss, Olympia, (360) 902-1388; Implementation and Enforcement: Eric Schroff, Olympia, (360) 902-1483.
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 board's rules for the protection of marbled murrelets, a species listed as threatened under the federal Endangered Species Act and Washington state law, rely upon accurate determination of their presence and nesting locations. These determinations are accomplished in part by implementing the standards for effective surveying established by the PSG protocol. The forest practices rules currently require the use of the March 1, 1997, PSG protocol; however that protocol was substantively modified by PSG. The rules would be changed to require the new January 6, 2003, protocol for future surveying. Rule changes are also proposed regarding the relationship between the definition of an occupied marbled murrelet site and murrelet circling behavior. The anticipated effect is increased accuracy in determining marbled murrelet occupancy in a forest stand.
Proposal Changes the Following Existing Rules: This proposal amends WAC 222-12-090 and 222-16-010 to accomplish the following:
• Recognize the January 6, 2003, Pacific Seabird Group (PSG) survey protocol as the standard for surveying for marbled murrelets. This replaces the March 1, 1997, PSG protocol (WAC 222-12-090).
• Recognize that marbled murrelet circling behavior is an indication of occupation of a forest stand; however the proposal provides that the presumption of occupancy that observations of circling behavior establishes may be rebutted by a new provision in the rules. This continues existing protection of forest stands that may be occupied as indicated by circling, but provides a mechanism to change designation of occupancy based solely upon circling behavior. If a third year of surveying does not observe any subcanopy indicators of occupancy, the forest stand will be redesignated as not occupied (WAC 222-16-010).
• Correct the labeling of a graphic in the rule definition of "marbled murrelet detection area" (WAC 222-16-010).
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Pertaining to Protection of Marbled Murrelets
Legislative direction for preparing an SBEIS may be found in the Regulatory Fairness Act (chapter 19.85 RCW). The legislative intent underlying the Regulatory Fairness Act is to reduce 'the disproportionate impact of state administrative rules on small business.' A small business is defined as having fifty or fewer employees, and the SBEIS is intended to identify whether the impact of a proposed new rule does actually fall disproportionately on small businesses and, if so, then to identify ways to mitigate for it.
Another part of the rule-making procedure requires completion of a benefit-cost analysis (BCA) prior to rule adoption, in order to demonstrate that probable benefits of the proposed new rule exceed its probable costs and, further, to demonstrate that the proposed rule change is the most cost-effective means of achieving the goal of the rule change. Legislative direction for preparing a BCA may be found in the Administrative Procedure Act (chapter 34.05 RCW). The Administrative Procedure Act requires, under subsection (1) of RCW 34.05.328, that: 'Before adopting a rule described in subsection (5) of this section, an agency shall:...
(d) Determine that the probable benefits of the rule are greater than its probable costs, taking into account both the qualitative and quantitative benefits and costs and the specific directives of the statute being implemented;
(e) Determine, after considering alternative versions of the rule and the analysis required under ...c)... of this subsection, that the rule being adopted is the least burdensome alternative for those required to comply with it that will achieve the general goals and specific objectives stated under (a) of this subsection;...'
The above determinations must be documented before final rule adoption, and included in the rule-making record. This economic analysis combines the SBEIS and the BCA and complies with the legislative requirements for these economic analyses as part of the rule-making process.
MARBLED MURRELETS RULE CHANGE
Proposed New Rule
The Forest Practices Board's rules for the protection of marbled murrelets rely upon accurate determination of their presence and nesting locations. These determinations are accomplished in part by implementing the standards for effective surveying established by the Pacific Seabird Group (PSG) protocol. The forest practices rules currently require the use of the March 1, 1997, PSG protocol; the PSG updated the marbled murrelet protocol on January 6, 2003. The proposed rule change would change the board's rules to reflect this change and require the use of the updated protocol. The rules also need to be changed regarding the relationship between the definition of an occupied marbled murrelet site and murrelets circling above a timber stand to better reflect the current PSG protocol.
Summary of Proposed Rule Changes1: The proposed new rule amends WAC 222-12-090 and 222-16-010.
WAC 222-12-090: In WAC 222-12-090 the Forest Practices Board directed the Department of Natural Resources (DNR), in cooperation with the Departments of Fish and Wildlife, Agriculture, Ecology, and such other agencies, affected Indian tribes, or interested parties as may have appropriate expertise, to prepare and submit to the board for approval, revisions to the forest practices board manual. The manual is a supplement to the forest practices rules. Subsection (14) of WAC 222-12-090 pertains to a survey protocol for marbled murrelets and directs that the PSG's survey protocol in effect March 1, 1997, be used when surveying for marbled murrelets in a stand.
The proposed new rule amends WAC 222-12-090(14) replacing the protocol in effect March 1, 1997, (a 1994 PSG protocol) with the PSG's current survey protocol dated January 6, 2003.
WAC 222-16-010: WAC 222-16-010(1) includes a definition of "occupied murrelet site." Under the current rule, a contiguous area of suitable habitat or area distinguishable from the adjacent forest based on vegetative characteristics important to nesting marbled murrelets is considered occupied where at least one of the following marbled murrelets behaviors or conditions occur:
(a) A nest is located; or
(b) Downy chicks or eggs or eggshells are found; or
(c) Marbled murrelets are detected flying low, through, into or out of the forest canopy; or
(d) Birds calling from the stationary location within the area; or
(e) Birds circling above the timber stand within one tree height of the top of the canopy.
Circling and other above-canopy flights such as dives, indicate possible occupancy of a site. The 2003 PSG protocol states that circling behaviors are a red flag that should prompt additional survey effort to observe subcanopy activity. The PSG recommends that in all cases where circling is observed, additional surveys be conducted to determine occupancy.
The proposed rule amends WAC 222-16-010 so that if after the completion of the two-year survey protocol the site is determined to be occupied based on subsection (1)(e) above ("circling"), but no other behaviors or conditions (subsection (1)(a) through (d)) are observed, an additional third-year of survey may be conducted if a landowner wishes to not accept the occupancy designation. If during the third year survey none of the behaviors or conditions listed in subsection (1)(a) through (d) are observed, the site will be considered probably unoccupied or "probable absence."
Summary of 2003 Protocol for Surveying Marbled Murrelets2: The objectives of the protocol are to: (1) Document the occurrence or probable absence of murrelets in a forest at the time of surveys; (2) interpret the biological significance of behaviors observed during surveys to evaluate how murrelets are using the site (i.e., classify sites as "presence," "occupied," or "probable absence"); (3) identify the geographic distribution of the marbled murrelet; and (4) provide consistency in surveys among land managers.
The unit of measure for surveys is the detection of a single bird or group of birds, defined as the sighting or hearing of one or more birds acting in a similar manner and initially occurring at the same time. A site with murrelet presence is a site of potential habitat where there has been at least one murrelet detection. An occupied site is where murrelets have been observed exhibiting subcanopy behaviors, which are behaviors that occur at or below the forest canopy and that strongly indicate that the site has some importance for breeding.
The Pacific Seabird Group (PSG) established survey protocols for standardized techniques to detect murrelets in forests in 1994. Survey results indicate that murrelets frequently don't occupy a site every year, so a two-year protocol requiring equal intensity of surveying in both years was established. The survey consists of a number of visits to the site to determine presence of birds and/or occupancy behavior. Because the probability of detecting presence or occupancy on any one visit is relatively low, surveys need to be continued until occupancy behavior is detected at which time the site is classified as "occupied," or a sufficient number of surveys have been conducted to determine that there is a low probability that the site is occupied. A stopping rule was established for each survey year after which the probability of occupancy in that year is determined to be low. When the stopping rule is implemented and the full compliment of surveys is conducted in each of the two years, the site is classified as "probable absence" of murrelet.
For both the 1994 and 2003 protocols, the stopping rule for each year has two steps. In the 1994 protocol in step one, if after four visits no bird(s) were detected, then the surveying ended for that year, and the site was classified as "probable absence" for that year. If birds were detected but no occupancy behavior was found in the first step, then one more visit was conducted. If no occupancy behavior was found after a total of five visits then the site was classified as 'probable absence' for that year. The protocol was repeated in the second year. If the protocol was completed for each year of the two-year survey without detecting occupancy, the site was classified as "probable absence."
The overall objective of the survey design is to achieve a high confidence that occupied sites are classified correctly, but some error is unavoidable. Given that, a secondary goal is to achieve survey efficiency, i.e., optimize the number of surveys that are needed to classify occupancy; in establishing the protocol, the PSG followed the frequently used convention of establishing a target of 95% confidence in survey outcome and a 5% misclassification error3. This means that if the protocol is followed and the site is occupied, there is a 95% probability that occupancy will be detected and a 5% probability that an occupied site will be classified as "probable absence."
To assess the two-year protocol for marbled murrelets, estimates of the probability of detection of presence and occupancy for a single visit were constructed using a ten-year data set from murrelet surveys conducted during 1989-1998. Based on this data, the 1994 protocol had only an 85% probability of detecting occupancy given that a site was occupied, and a 15% probability of misclassifying the occupied site as "probable absence."
To achieve the target 95% correct classification rate for occupied sites, the protocol was updated in 2003 to include more visits in each of the two years to estimate occupancy status at any individual site. The most important change is the recommended number of survey visits in the stopping rule. In the 2003 protocol, the minimum number of visits per year to determine presence (step 1) was increased from 4 to 5, and the total number of visits before a site could be classified as "probable absence" in a given year was increased from 5 to 9.
The recommended approach is summarized below with the recommended number of visits in the 2003 protocol and the recommended visits in the 1994 protocol shown in parentheses ( ): "If, in year 1, detections are made within the first 5 (4) visits but subcanopy behaviors are not observed, the full 9 (5) visits are made in year 1 and year 2, for a two-year total of 18 (10) visits (unless occupancy is established in fewer visits).
If, in year 1, no detections have been made after 5 (4) visits, surveys can cease for that year. In year 2, if presence-only detections are made within the first 5 (4) visits, the full 9 (5) visits are made for a two-year total of 14 (9) visits.
If, in year 1, no detections have been made after 5 (4) visits, surveys can cease for that year. If, in year 2, no detections have been made after 5 (4) visits, the survey can be stopped with 10 (18) total survey visits and the site classified as probable absence."
Status of Surveyed Sites: If a site is occupied, the survey is valid indefinitely unless its habitat becomes unsuitable. If a surveyed site is classified as "probable absence" with no presence detections, the survey is valid for five years.
Economic Analysis: Economic analysis of the effects of the proposed new rule focuses entirely on direct effects. Secondary and subsequent effects may be positive or negative and are highly speculative, and have therefore not been included in the analysis.
Expected Cost of New Rule: WAC 222-12-090, the impact of the amendment of WAC 222-12-090 is to replace the March 1, 1994 PSG survey protocol with the January 6, 2003 PSG survey protocol.
The direct cost of the new rule is made up of two parts:
1) The increased cost of additional survey visits and;
2) Reduced sales because less timber will be available for harvest.
Cost of Additional Survey Visits: The cost of surveying will depend on three factors:
A. The cost per survey visit.
B. The proportion of sites that are occupied.
C. Expected number of sites surveyed.
Cost Per Visit: The stand surveyed is assumed to be 60-120 acres in size, a manageable size that can be covered by one surveyor in a season. Based on accepted bids DNR paid to private and WDFW consultants, the average cost of a survey visit is assumed to be $3004.
Increased Number of Visits per Protocol: The number of expected additional visits per site required under the 2003 protocol can be estimated based on the probability of occupation and detection of the site. These probabilities depend on whether the site is occupied or unoccupied.
Unoccupied Site: If a site is unoccupied, it is assumed that eventually the site will be determined to be probably unoccupied but presence may be detected during the visits. This results in three possibilities or scenarios: (1) Presence is not detected; (2) presence is detected during the first year; and (3) presence is not detected in the first year but is in the second. In all three cases the site is determined to be unoccupied at the end of the protocol.
The number of additional visits required by the 2003 protocol ranges from 2 to 8. At $300 per visit, the increased cost from additional visits per survey ranges from $600 to $2,400. The average cost can be estimated by assigning probabilities to each scenario. The probabilities of each of the three scenarios are based on probabilities found in the 1989-1998 data set referred to above and are shown in column 5 of Table 1. In the 1989-1998 surveys, a presence was not detected in 70.34% of the unoccupied survey sites, while presence was found in 29.66% of the sites during the two-year protocol. While it was not reported in which of the two years presence was detected, it was assumed that the probability of detecting presence was equally divided between the first and second year, or 14.83% per year. Applying these probabilities, the average increase in cost per survey, assuming the site is unoccupied, is $1,000.
The increased number of visits and the increased cost for
the three cases is shown in Table 1 below.
Table 1: Increase in survey cost for unoccupied site.
| Scenario | (1) Visits under 1994 protocol |
(2) Visits under 2003 protocol |
(3) Increase number of visits |
(4) Increased cost at $300 per visit |
(5) Probability a given site is unoccupied |
(6) Expected increase in costs |
| (1) Presence not detected | 8 | 10 | 2 | $600 | .7034 | $422 |
| (2) Presence detected during first year | 10 | 18 | 8 | $2,400 | .1483 | $356 |
| (3) Presence detected during second year | 9 | 14 | 5 | $1,500 | .1483 | $222 |
| Expected average increase in cost per survey | $1,000 |
Again using the 1989-1998 surveys as a basis for determining probabilities of the three scenarios, for 84.84% of occupied sites, occupancy will be detected under the 1994 protocol and the added cost will be zero. For 4.54% of occupied sites, occupancy will not be detected after the 2003 protocol is completed, in which case the added cost is $2,400.
For the remaining 10.62% of the sites, occupancy will be detected under the 2003 protocol but would not have been detected under the 1994 protocol. Detection was assumed to occur during the first year, this is a conservative assumption. In this case (scenario 2) the increased cost will range from $300 to $2,400 depending on which visit the occupancy is determined. The survey data indicates that given a site is occupied, the probability of detecting occupancy on any one visit is constant. For scenario 2, this results in an expected value for increased visits of 4.5 visits.
Applying these probabilities, the average increase in cost per survey, assuming the site is occupied, is $252. The increased number of visits and the increased cost for the three cases is shown in Table 2 below.
Table 2: Estimated increase in survey cost for occupied
site.
| Scenario | (1) Visits under 1994 protocol |
(2) Visits under 2003 protocol |
(3) Expected increased number of visits |
(4) Increased cost at $300 per visit |
(5) Probability a given site is occupied |
(6) Expected increase in costs |
| (1) Occupation detection by 1994 protocol | - | - | 0 | $0 | .8484 | $0 |
| (2) Occupation not detected under 1994 protocol but detected under 2003 protocol | 10 | 11 to 18 | 4.5 | $1,350 | .1062 | $143 |
| (3) Occupation not detected under 2003 protocol | 10 | 18 | 8 | $2,400 | .0454 | $109 |
| Total | $252 |
Lost Sales or Revenue: By increasing the accuracy of the protocol, the new rule is likely to increase the area that may be unavailable for harvest because it is reducing the number of misclassified occupied murrelet sites. The typical survey area is estimated to be from 60 to 120 acres. Assuming a given survey area is 90 acres and the value of the timber is $5,370 per acre (based on a typical DNR harvest per acre of 17.9 mbf valued at $300 per mbf), sales would be reduced by $483,300 (90 acres*$5,370/ac.) on the occupied site.
If the proportion of sites surveyed that are occupied is the same as from the 1989-1998 surveys data or 34.38%, then the expected cost per site surveyed is $17,646 ($483,300*.3438*.1062).
There is potential for either increasing or decreasing a landowner's revenue, depending on the results of surveys, and the use and outcome of the third-year survey option. It is estimated that large landowners have completed a significant portion, if not all, of their suitable marbled murrelet habitat surveying in the several years since the rules were originally adopted.
Total Cost per Occupied Site Surveyed: The expected total cost per site surveyed is $18,389 ($17,646 + $743); $17,646 in reduced sale plus $743 in added survey cost.
Expected Benefit of Proposed Rule Changes: The primary benefit of the proposed rule changes is to increase the accuracy in detecting the occupancy of marbled murrelets in a forest stand, thus providing additional protection of marbled murrelets, a species listed as threatened under the federal Endangered Species Act and Washington state law. The increased accuracy of marbled murrelet occupancy detection benefits the species (WAC 222-12-090) and may benefit landowners' revenues if an optional third year survey results in a "probable absence" classification (WAC 222-16-010).
WAC 222-12-090(14): Since 1994, the PSG has conducted inland surveys and research directed at various aspects of marbled murrelets' breeding ecology, and have generated new insights on nesting behavior, activity patterns, and habitat use. The 2003 protocol compiles information from all previous protocols and provides new recommendations for survey visits based on analyses of murrelet surveys conducted during 1989-19985. The PSG's recommendations indicate that the current rules provide less protection than provided by the updated (2003) protocol. Its analysis indicates that under the current rule using the 1994 PSG protocol, the probability of detecting occupancy given that a site is truly occupied is 84.84% and there is a 15.16% probability of misclassifying a site as "probable absence" when it is, in fact, occupied.
The PSG has adopted the position that this probability of misclassification of an occupied site should be reduced to 5%. To accomplish this, PSG has increased the number of required visits in its recommended protocol to reduce the probability of misclassification of an occupied site.
WAC 222-16-010: Under the proposed rule, landowners will have the option of surveying sites in a third year if the two-year surveys result in an occupancy determination because of low circling only. If the third year surveys indicate "probable absence" because of the lack of subcanopy behaviors, then the site would be classified as not occupied under the forest practices rules. At this time it is unknown if landowners will choose to resurvey and how many will be found to be "probable absence." The magnitude of benefit is currently unknown because it depends on the actions of the landowner and whether the marbled murrelet occupancy status changes. In any case, a greater degree of accuracy for marbled murrelet occupancy detection is beneficial because it decreases landowner and state regulatory agencies liability in regard to harm of a federal and state threatened species.
Least Burdensome Alternative: The Forest Practices Board's rules for the protection of marbled murrelets rely upon accurate determination of their presence and nesting locations. New scientific research has generated new insights on nesting behavior, activity patterns and habitat use. The proposed rule as constructed modifies the current rule to increase the accuracy of detection of occupancy to meet the minimum acceptable level of accuracy. Specifically, the proposed rule changes are expected to reduce the misclassification of marbled murrelet occupancy from 15% to 5%, the target accuracy level set by the PSG.
Small Business Economic Impact Statement: The legislative intent underlying the Regulatory Fairness Act is to reduce 'the disproportionate impact of state administrative rules on small business.' The concern is that rules that require reporting or other fixed compliance costs will have a disproportionate impact on small firms. In this case the cost to the business is going to depend on whether the business's ownership is determined to have suitable marbled murrelet habitat, not the business size.
The law defines "small business" as one having less than 50 employees, but there is no readily available information on the ownership of marbled murrelet habitat by this definition. One useful designation for which information on ownership patterns is known is "small forest landowner." A forest landowner is considered a small forest landowner if the harvest from their land averages less than two million board feet per year6. It is believed that there is a high correlation between small businesses and small forest landowners. As a result, small businesses are more likely to own forests that qualify for the small acreage exemption. Landowners with less than 500 acres are exempt from the murrelet critical habitat rule (WAC 222-16-080 (1)(j)(vi)), which will tend to reduce the impact on small business owners.
For these reasons, the impact of this rule on small businesses is not likely to be disproportionately greater than that on businesses as a whole. It is likely that because of the location of many small forest landowners outside the geographic use area of murrelets and the fact that forest landowners with less than 500 acres are exempt from the murrelet critical habitat rule, they are expected to be proportionately less impacted than are businesses as a whole.
Results and Findings: The following conclusions can be drawn from the above analysis:
1. Small Businesses Impact: Small businesses are not expected to be disproportionately impacted as a result of the proposed new rule. In fact, there is evidence that it is likely that because of the location of many small forest landowners outside the geographic use area of murrelets and the fact that forest landowners with less than 500 acres are exempt from the murrelet critical habitat rule, they are expected to be proportionately less impacted than are businesses as a whole.
2. Benefits of Proposed Rule Change: The adoption of the 2003 protocol (WAC 222-12-090) is expected to reduce the probability of misclassifying an occupied site as "probable absence" from over 15% to less than 5%. The benefits of this change are (1) greater accuracy for landowners in detecting occupancy in a forest stand, (2) reduced risk of harm to a state and federal threatened species, (3) landowners and state regulatory agencies benefit from reduced liability in regard to harm of a federal and state threatened species. In addition, the change in WAC 222-16-010 which allows a third year survey if the site is determined to be occupied because of low circling only, may result in these sites being reclassified as "probable absence" in which case harvest could proceed, therefore allowing revenues that would not be possible under the current rules.
3. Cost of Proposed Rule Change: The average cost to landowners of adopting the 2003 protocol is estimated to be $18,389 per site surveyed. This cost is made up of two parts. First, the estimated increased cost of an average of just less than 2.5 visits per site surveyed at $300 per visit is $743. Second, because more occupied sites will be found, additional timber may be unavailable for sale. The expected value of the reduced sales is $17,646 per site surveyed. There is potential for either increasing or decreasing a landowner's revenue, depending on the results of surveys.
4. Comparison of Benefits and Cost of Proposed Rule Change: While the probable benefits associated with the proposed new rules are not quantifiable and therefore cannot be directly compared with the quantifiable cost of the new rule, taking into account both the qualitative and quantitative benefits and costs and the specific directives of the statute being implemented, based on the findings of this analysis, it is reasonable to conclude that the probable benefits of the rule are greater than its probable costs.
5. Least Burdensome Alternative: The Forest Practices Board's rules for the protection of marbled murrelets rely upon accurate determination of their presence and nesting locations. New scientific research has generated new insights on nesting behavior, activity patterns and habitat use. The proposed rule as constructed modifies the current rule to increase the accuracy of detection of occupancy to meet the minimum acceptable level of accuracy. Specifically, the proposed rule changes are expected to reduce the misclassification of marbled murrelet occupancy from 15% to 5%, the target accuracy level set by the PSG.
After considering alternative rules that would meet the needs of the board and based on the DNR's analysis, it seems reasonable to conclude that the rule being adopted is the least burdensome alternative for those required to comply with it, and that will achieve the general goals and specific objectives set by the Board.
WDFW Estimate of Marbled Murrelet Survey Costs
for Adoption of 2003 PSG Protocol
WDFW Diversity Division
October 16, 2003
• ~ $300 daily per survey visit
o Based on accepted bids DNR paid to private and WDFW consultants
• Stand surveyed is a manageable size that can be covered by one surveyor in a season
o Survey area may be 60 - 120 acres in size, = 15-30 ac/station (4 stations total)
• Does not account for improper surveys, or additional surveys required due to failure to follow protocol or poor weather conditions.
| Scenario | 1994 Protocol | 2003 Protocol |
| 4 visits for presence x 2 yrs | $2,400 | |
| 5 visits for occupancy x 2 yrs | 3,000 | |
| 5 visits for presence x 2 yrs | $3,000 | |
| 9 visits for occupancy x 2 yrs | 5,400 | |
| Range: 1st visit determines occupancy in the 1st yr | $300 | |
| Full protocol needed: 10 visits over 2 yrs | 3,000 | |
| Range: 1st visit determines occupancy in the 1st yr | $300 | |
| Full protocol needed: 18 visits over 2 yrs | 5,400 | |
| Special case - Only circling behavior after 2 yrs of full compliment of protocol surveys: | ||
| 9 visits x 2 yrs + 1 visit in 3rd yr | $5,700 | |
| 9 visits x 2 yrs + full compliment of surveys in 3rd year | 8,100 |
• The number of murrelet surveys on private lands is decreasing. Most industrial timber companies have completed the majority of their inventory surveys on their holdings.
• Most large industry companies prior to 2003 were already conducting increased number of visits beyond the minimum protocol requirements in the last 3-4 years.
1 This summary is provided for the convenience of the reader and should not be relied upon as a complete list of all changes.
2 The information in this section is taken from "Methods for Surveying Marbled Murrelets in Forests: A Revised Protocol for Land Management and Research," compiled and edited by Diane Evans Mack, et. al., January 6, 2003, http://www.pacificseabirdgroup.org/mamuforms.html.
3 For this protocol, error is defined as the probability of misclassifying a site as unoccupied when it is actually occupied. False positives were assumed to be zero, based on consensus that this error is low.
4 From "WDFW Estimate of Marbled Murrelet Survey Costs of Adoption of 2003 PSG Protocol" prepared by Steve Desimone and Eric Cummins. See Appendix A.
5 Diane Evans Mack, et. al. (p.1).
6 For a full definition of a Small Forest Landowner see WAC 222-16-010.
A copy of the statement may be obtained by writing to Patricia Anderson, Rules Coordinator, Forest Practices Board, Department of Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia, WA 98504-7012, phone (360) 902-1413, fax (360) 902-1428, or viewing on the Forest Practices Board's website at www.dnr.wa.gov/forestpractices (choose "Forest Practices Rules, and then, "Marbled Murrelet Economic Analysis").
RCW 34.05.328 applies to this rule adoption. This rule alters a standard for the issuance of a forest practices application by replacing a 1997 survey protocol with a new 2003 protocol. Any survey results submitted with a forest practices application are based upon surveying done in accordance with the standards set in the protocol. A preliminary cost-benefit analysis described in RCW 34.05.328 (1)(c) is available by writing or calling the rules coordinator, or viewing it on the Forest Practices Board's website (see above).
Hearing Location: Natural Resources Building, 1111 Washington Street S.E., Room 172, Olympia, WA, on January 13, 2004, at 4:30 p.m.
Assistance for Persons with Disabilities: Contact
Forest Practices Division at (360) 902-1413 by January 6, 2004, TDD (360) 902-1125.
Submit Written Comments to: Rules Coordinator, Forest Practices Board, Department of Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia, WA 98504-7012, forest.practicesboard@wadnr.gov, fax (360) 902-1428, by 5 p.m. on January 16, 2004.
Date of Intended Adoption: February 11, 2004.
December 2, 2003
Pat McElroy
Chair
OTS-6779.1
AMENDATORY SECTION(Amending WSR 01-12-042, filed 5/30/01,
effective 7/1/01)
WAC 222-12-090
Forest practices board manual.
When
approved by the board the manual serves as an advisory
technical supplement to these forest practices rules. The
department, in cooperation with the departments of fish and
wildlife, agriculture, ecology, and such other agencies,
affected Indian tribes, or interested parties as may have
appropriate expertise, is directed to prepare, and submit to
the board for approval, revisions to the forest practices
board manual. The manual shall include:
(1) Method for determination of adequate shade requirements on streams needed for use with WAC 222-30-040.
(2) Standards for identifying channel migration zones and bankfull channel features.
(3) Guidelines for forest roads.
(4) Guidelines for clearing slash and debris from Type Np and Ns Waters.
(5) Guidelines for landing location and construction.
(6) Guidelines for determining acceptable stocking levels.
(7) Guidelines for riparian management zones.
(8) Guidelines for wetland delineation.
(9) Guidelines for wetland replacement or substitution.
(10) A list of nonnative wetland plant species.
(11) The standard methodology, which shall specify the quantitative methods, indices of resource conditions, and definitions, for conducting watershed analysis under chapter 222-22 WAC. The department, in consultation with Timber/Fish/Wildlife's Cooperative Monitoring, Evaluation and Research Committee (CMER), may make minor modifications to the version of the standard methodology approved by the board. Substantial amendments to the standard methodology requires approval by the board.
(12) Guidelines for forest chemicals.
(a) A list of special concerns related to aerial application of pesticides developed under WAC 222-16-070(3).
(b) Guidelines for aerial applications of pesticides and other forest chemicals under chapter 222-38 WAC.
(13) Guidelines for determining fish use for the purpose of typing waters under WAC 222-16-031.
(14) Survey protocol for marbled murrelets. The Pacific
Seabird Group survey protocol ((in effect March 1, 1997))
dated January 6, 2003, and formally titled Methods for
Surveying Marbled Murrelets in Forests: A Revised Protocol
for Land Management Land Research, shall be used when
surveying for marbled murrelets in a stand. Surveys
((conducted before the effective date of this rule)) are valid
if they were conducted in ((substantial)) compliance with
((generally accepted)) the board-recognized Pacific Seabird
Group survey protocols in effect at the beginning of the
season in which ((they)) the surveys were conducted.
(15) The department shall, in consultation with the department of fish and wildlife, develop platform protocols for use by applicants in estimating the number of platforms, and by the department in reviewing and classifying forest practices under WAC 222-16-050. These protocols shall include:
(a) A sampling method to determine platforms per acre in the field;
(b) A method to predict the number of platforms per acre based on information measurable from typical forest inventories. The method shall be derived from regression models or other accepted statistical methodology, and incorporate the best available data; and
(c) Other methods determined to be reliable by the department, in consultation with the department of fish and wildlife.
(16) Guidelines for evaluating potentially unstable slopes and landforms.
(17) Guidelines for the small forest landowner forestry riparian easement program.
(18) Guidelines for riparian open space program.
(19) Guidelines for hardwood conversion.
(20) Guidelines for financial assurances.
(21) Guidelines for alternate plans.
(22) Guidelines for adaptive management program.
(23) Guidelines for field protocol to locate mapped divisions between stream types and perennial stream identification.
(24) Guidelines for interim modification of bull trout habitat overlay.
(25) Guidelines for bull trout presence survey protocol.
(26) Guidelines for placement strategy for woody debris in streams.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-12-090, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-12-090, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-12-090, filed 7/21/97, effective 8/21/97. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-113, § 222-12-090, filed 7/21/92, effective 8/21/92. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-12-090, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), § 222-12-090, filed 11/16/87, effective 1/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-12-090, filed 8/3/82, effective 10/1/82; Order 263, § 222-12-090, filed 6/16/76.]
OTS-6780.1
AMENDATORY SECTION(Amending WSR 01-12-042, filed 5/30/01,
effective 7/1/01)
WAC 222-16-010
General definitions.*
Unless otherwise
required by context, as used in these rules:
"Act" means the Forest Practices Act, chapter 76.09 RCW.
"Affected Indian tribe" means any federally recognized Indian tribe that requests in writing from the department information on forest practices applications and notification filed on specified areas.
"Alluvial fan" see "sensitive sites" definition.
"Appeals board" means the forest practices appeals board established in the act.
"Aquatic resources" means water quality, fish, the Columbia torrent salamander (Rhyacotriton kezeri), the Cascade torrent salamander (Rhyacotriton cascadae), the Olympic torrent salamander (Rhyacotriton olympian), the Dunn's salamander (Plethodon dunni), the Van Dyke's salamander (Plethodon vandyke), the Tailed frog (Ascaphus truei) and their respective habitats.
"Area of resource sensitivity" means areas identified in accordance with WAC 222-22-050 (2)(d) or 222-22-060(2).
"Bankfull depth" means the average vertical distance between the channel bed and the estimated water surface elevation required to completely fill the channel to a point above which water would enter the floodplain or intersect a terrace or hillslope. In cases where multiple channels exist, the bankfull depth is the average depth of all channels along the cross-section. (See board manual section 2.)
"Bankfull width" means:
(a) For streams - the measurement of the lateral extent of the water surface elevation perpendicular to the channel at bankfull depth. In cases where multiple channels exist, bankfull width is the sum of the individual channel widths along the cross-section (see board manual section 2).
(b) For lakes, ponds, and impoundments - line of mean high water.
(c) For tidal water - line of mean high tide.
(d) For periodically inundated areas of associated wetlands - line of periodic inundation, which will be found by examining the edge of inundation to ascertain where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland.
"Basal area" means the area in square feet of the cross section of a tree bole measured at 4 1/2 feet above the ground.
"Bedrock hollows" (colluvium-filled bedrock hollows, or hollows; also referred to as zero-order basins, swales, or bedrock depressions) means landforms that are commonly spoon-shaped areas of convergent topography within unchannelled valleys on hillslopes. (See board manual section 16 for identification criteria.)
"Board" means the forest practices board established by the act.
"Bog" means wetlands which have the following characteristics: Hydric organic soils (peat and/or muck) typically 16 inches or more in depth (except over bedrock or hardpan); and vegetation such as sphagnum moss, labrador tea, bog laurel, bog rosemary, sundews, and sedges; bogs may have an overstory of spruce, western Hemlock, lodgepole pine, cedar, whitepine, crabapple, or aspen, and may be associated with open water. This includes nutrient-poor fens. (See board manual section 8.)
"Borrow pit" shall mean an excavation site outside the limits of construction to provide material necessary to that construction, such as fill material for the embankments.
"Bull trout habitat overlay" means those portions of Eastern Washington streams containing bull trout habitat as identified on the department of fish and wildlife's bull trout map. Prior to the development of a bull trout field protocol and the habitat-based predictive model, the "bull trout habitat overlay" map may be modified to allow for locally-based corrections using current data, field knowledge, and best professional judgment. A landowner may meet with the departments of natural resources, fish and wildlife and, in consultation with affected tribes and federal biologists, determine whether certain stream reaches have habitat conditions that are unsuitable for supporting bull trout. If such a determination is mutually agreed upon, documentation submitted to the department will result in the applicable stream reaches no longer being included within the definition of bull trout habitat overlay. Conversely, if suitable bull trout habitat is discovered outside the current mapped range, those waters will be included within the definition of "bull trout habitat overlay" by a similar process.
Place illustration here. |
"Chemicals" means substances applied to forest lands or timber including pesticides, fertilizers, and other forest chemicals.
"Clearcut" means a harvest method in which the entire stand of trees is removed in one timber harvesting operation. Except as provided in WAC 222-30-110, an area remains clearcut until:
It meets the minimum stocking requirements under WAC 222-34-010(2) or 222-34-020(2); and
The largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.
"Columbia River Gorge National Scenic Area or CRGNSA" means the area established pursuant to the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544b(a).
"CRGNSA special management area" means the areas designated in the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544b(b) or revised pursuant to 16 U.S.C. § 544b(c). For purposes of this rule, the special management area shall not include any parcels excluded by 16 U.S.C. § 544f(o).
"CRGNSA special management area guidelines" means the guidelines and land use designations for forest practices developed pursuant to 16 U.S.C. § 544f contained in the CRGNSA management plan developed pursuant to 15 U.S.C. § 544d.
"Commercial tree species" means any species which is capable of producing a merchantable stand of timber on the particular site, or which is being grown as part of a Christmas tree or ornamental tree-growing operation.
"Completion of harvest" means the latest of:
Completion of removal of timber from the portions of forest lands harvested in the smallest logical unit that will not be disturbed by continued logging or an approved slash disposal plan for adjacent areas; or
Scheduled completion of any slash disposal operations where the department and the applicant agree within 6 months of completion of yarding that slash disposal is necessary or desirable to facilitate reforestation and agree to a time schedule for such slash disposal; or
Scheduled completion of any site preparation or rehabilitation of adjoining lands approved at the time of approval of the application or receipt of a notification: Provided, That delay of reforestation under this paragraph is permitted only to the extent reforestation would prevent or unreasonably hinder such site preparation or rehabilitation of adjoining lands.
"Constructed wetlands" means those wetlands voluntarily developed by the landowner. Constructed wetlands do not include wetlands created, restored, or enhanced as part of a mitigation procedure or wetlands inadvertently created as a result of current or past practices including, but not limited to: Road construction, landing construction, railroad construction, or surface mining.
"Contamination" means introducing into the atmosphere, soil, or water, sufficient quantities of substances as may be injurious to public health, safety or welfare, or to domestic, commercial, industrial, agriculture or recreational uses, or to livestock, wildlife, fish or other aquatic life.
"Convergent headwalls" (or headwalls) means teardrop-shaped landforms, broad at the ridgetop and terminating where headwaters converge into a single channel; they are broadly concave both longitudinally and across the slope, but may contain sharp ridges separating the headwater channels. (See board manual section 16 for identification criteria.)
"Conversion option harvest plan" means a voluntary plan developed by the landowner and approved by the local government entity indicating the limits of harvest areas, road locations, and open space.
"Conversion to a use other than commercial timber operation" shall mean a bona fide conversion to an active use which is incompatible with timber growing.
"Cooperative habitat enhancement agreement (CHEA)" see WAC 222-16-105.
"Critical habitat (federal)" means the habitat of any threatened or endangered species designated as critical habitat by the United States Secretary of the Interior or Commerce under Sections 3 (5)(A) and 4 (a)(3) of the Federal Endangered Species Act.
"Critical nesting season" means for marbled murrelets - April 1 to August 31.
"Critical habitat (state)" means those habitats designated by the board in accordance with WAC 222-16-080.
"Cultural resources" means archaeological and historic sites and artifacts and traditional religious, ceremonial and social uses and activities of affected Indian tribes.
"Cumulative effects" means the changes to the environment caused by the interaction of natural ecosystem processes with the effects of two or more forest practices.
"Daily peak activity" means for marbled murrelets - one hour before official sunrise to two hours after official sunrise and one hour before official sunset to one hour after official sunset.
"Debris" means woody vegetative residue less than 3 cubic feet in size resulting from forest practice activities which would reasonably be expected to cause significant damage to a public resource.
"Deep-seated landslides" means landslides in which most of the area of the slide plane or zone lies below the maximum rooting depth of forest trees, to depths of tens to hundreds of feet. (See board manual section 16 for identification criteria.)
"Demographic support" means providing sufficient suitable spotted owl habitat within the SOSEA to maintain the viability of northern spotted owl sites identified as necessary to meet the SOSEA goals.
"Department" means the department of natural resources.
"Desired future condition (DFC)" is a reference point on a pathway and not an endpoint for stands. DFC means the stand conditions of a mature riparian forest at 140 years of age, the midpoint between 80 and 200 years. Where basal area is the only stand attribute used to describe 140-year old stands, these are referred to as the "Target Basal Area."
"Diameter at breast height (dbh)" means the diameter of a tree at 4 1/2 feet above the ground measured from the uphill side.
"Dispersal habitat" see WAC 222-16-085(2).
"Dispersal support" means providing sufficient dispersal habitat for the interchange of northern spotted owls within or across the SOSEA, as necessary to meet SOSEA goals. Dispersal support is provided by a landscape consisting of stands of dispersal habitat interspersed with areas of higher quality habitat, such as suitable spotted owl habitat found within RMZs, WMZs or other required and voluntary leave areas.
"Drainage structure" means a construction technique or feature that is built to relieve surface runoff and/or intercepted ground water from roadside ditches to prevent excessive buildup in water volume and velocity. A drainage structure is not intended to carry any typed water. Drainage structures include structures such as: Cross drains, relief culverts, ditch diversions, water bars, or other such structures demonstrated to be equally effective.
"Eastern Washington" means the geographic area in Washington east of the crest of the Cascade Mountains from the international border to the top of Mt. Adams, then east of the ridge line dividing the White Salmon River drainage from the Lewis River drainage and east of the ridge line dividing the Little White Salmon River drainage from the Wind River drainage to the Washington-Oregon state line.
Place illustration here. |
"Eastern Washington timber habitat types" means elevation ranges associated with tree species assigned for the purpose of riparian management according to the following:
| Timber Habitat Types | Elevation Ranges |
| ponderosa pine | 0 - 2500 feet |
| mixed conifer | 2501 - 5000 feet |
| high elevation | above 5000 feet |
"End hauling" means the removal and transportation of excavated material, pit or quarry overburden, or landing or road cut material from the excavation site to a deposit site not adjacent to the point of removal.
"Equipment limitation zone" means a 30-foot wide zone measured horizontally from the outer edge of the bankfull width of a Type Np or Ns Water. It applies to all perennial and seasonal nonfish bearing streams.
"Erodible soils" means those soils that, when exposed or displaced by a forest practice operation, would be readily moved by water.
"Even-aged harvest methods" means the following harvest methods:
Clearcuts;
Seed tree harvests in which twenty or fewer trees per acre remain after harvest;
Shelterwood regeneration harvests in which twenty or fewer trees per acre remain after harvest;
Group or strip shelterwood harvests creating openings wider than two tree heights, based on dominant trees;
Shelterwood removal harvests which leave fewer than one hundred fifty trees per acre which are at least five years old or four feet in average height;
Partial cutting in which fewer than fifty trees per acre remain after harvest;
Overstory removal when more than five thousand board feet per acre is removed and fewer than fifty trees per acre at least ten feet in height remain after harvest; and
Other harvesting methods designed to manage for multiple age classes in which six or fewer trees per acre remain after harvest.
Except as provided above for shelterwood removal harvests and overstory removal, trees counted as remaining after harvest shall be at least ten inches in diameter at breast height and have at least the top one-third of the stem supporting green, live crowns. Except as provided in WAC 222-30-110, an area remains harvested by even-aged methods until it meets the minimum stocking requirements under WAC 222-34-010(2) or 222-34-020(2) and the largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.
"Fen" means wetlands which have the following characteristics: Peat soils 16 inches or more in depth (except over bedrock); and vegetation such as certain sedges, hardstem bulrush and cattails; fens may have an overstory of spruce and may be associated with open water.
"Fertilizers" means any substance or any combination or mixture of substances used principally as a source of plant food or soil amendment.
"Fill" means the placement of earth material or aggregate for road or landing construction or other similar activities.
"Fish" means for purposes of these rules, species of the vertebrate taxonomic groups of Cephalospidomorphi and Osteichthyes.
"Fish habitat" means habitat, which is used by fish at any life stage at any time of the year including potential habitat likely to be used by fish, which could be recovered by restoration or management and includes off-channel habitat.
"Flood level - 100 year." Is a calculated flood event flow based on an engineering computation of flood magnitude that has a 1 percent chance of occurring in any given year. For purposes of field interpretation, landowners may use the following methods:
Flow information from gauging stations;
Field estimate of water level based on guidance for "Determining the 100-Year Flood Level" in the forest practices board manual section 2.
The 100-year flood level shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or under license from the federal government, the state, or a political subdivision of the state.
"Forest land" means all land which is capable of supporting a merchantable stand of timber and is not being actively used for a use which is incompatible with timber growing.
"Forest land owner" shall mean any person in actual control of forest land, whether such control is based either on legal or equitable title, or on any other interest entitling the holder to sell or otherwise dispose of any or all of the timber on such land in any manner: Provided, That 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.
"Forest practice" means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:
Road and trail construction;
Harvesting, final and intermediate;
Precommercial thinning;
Reforestation;
Fertilization;
Prevention and suppression of diseases and insects;
Salvage of trees; and
Brush control.
"Forest practice" shall not include: Forest species seed orchard operations and intensive forest nursery operations; or preparatory work such as tree marking, surveying and road flagging; or removal or harvest of incidental vegetation from forest lands such as berries, ferns, greenery, mistletoe, herbs, mushrooms, and other products which cannot normally be expected to result in damage to forest soils, timber or public resources.
"Forest road" means ways, lanes, roads, or driveways on forest land used since 1974 for forest practices or forest management activities such as fire control. "Forest roads" does not include skid trails, highways, or county roads except where the county is a forest landowner or operator.
"Forest trees" excludes trees cultivated by agricultural methods in growing cycles shorter than ten years: Provided, That Christmas trees are forest trees and: Provided further, That this exclusion applies only to trees planted on land that was not in forest use immediately before the trees were planted and before the land was prepared for planting the trees.
"Full bench road" means a road constructed on a side hill without using any of the material removed from the hillside as a part of the road. This construction technique is usually used on steep or unstable slopes.
"Green recruitment trees" means those trees left after harvest for the purpose of becoming future wildlife reserve trees under WAC 222-30-020(11).
"Ground water recharge areas for glacial deep-seated slides" means the area upgradient that can contribute water to the landslide, assuming that there is an impermeable perching layer in or under a deep-seated landslide in glacial deposits. (See board manual section 16 for identification criteria.)
"Headwater spring" means a permanent spring at the head of a perennial channel. Where a headwater spring can be found, it will coincide with the uppermost extent of Type Np Water.
"Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any tree, bush, weed or algae and other aquatic weeds.
"Historic site" includes:
Sites, areas and structures or other evidence of human activities illustrative of the origins, evolution and development of the nation, state or locality; or
Places associated with a personality important in history; or
Places where significant historical events are known to have occurred even though no physical evidence of the event remains.
"Horizontal distance" means the distance between two points measured at a 0% slope.
"Hyporheic" means an area adjacent to and below channels where interstitial water is exchanged with channel water and water movement is mainly in the downstream direction.
"Identified watershed processes" means the following components of natural ecological processes that may in some instances be altered by forest practices in a watershed:
Mass wasting;
Surface and road erosion;
Seasonal flows including hydrologic peak and low flows and annual yields (volume and timing);
Large organic debris;
Shading; and
Stream bank and bed stability.
"Inner gorges" means canyons created by a combination of the downcutting action of a stream and mass movement on the slope walls; they commonly show evidence of recent movement, such as obvious landslides, vertical tracks of disturbance vegetation, or areas that are concave in contour and/or profile. (See board manual section 16 for identification criteria.)
"Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect, other arthropods or mollusk pests.
"Interdisciplinary team" (ID Team) means a group of varying size comprised of individuals having specialized expertise, assembled by the department to respond to technical questions associated with a proposed forest practice activity.
"Islands" means any island surrounded by salt water in Kitsap, Mason, Jefferson, Pierce, King, Snohomish, Skagit, Whatcom, Island, or San Juan counties.
"Limits of construction" means the area occupied by the completed roadway or landing, including the cut bank, fill slope, and the area cleared for the purpose of constructing the roadway or landing.
"Load bearing portion" means that part of the road, landing, etc., which is supportive soil, earth, rock or other material directly below the working surface and only the associated earth structure necessary for support.
"Local government entity" means the governments of counties and the governments of cities and towns as defined in chapter 35.01 RCW.
"Low impact harvest" means use of any logging equipment, methods, or systems that minimize compaction or disturbance of soils and vegetation during the yarding process. The department shall determine such equipment, methods or systems in consultation with the department of ecology.
"Marbled murrelet detection area" means an area of land associated with a visual or audible detection of a marbled murrelet, made by a qualified surveyor which is documented and recorded in the department of fish and wildlife data base. The marbled murrelet detection area shall be comprised of the section of land in which the marbled murrelet detection was made and the eight sections of land immediately adjacent to that section.
| (( |
| Place illustration here. |
"Marbled murrelet nesting platform" means any horizontal tree structure such as a limb, an area where a limb branches, a surface created by multiple leaders, a deformity, or a debris/moss platform or stick nest equal to or greater than 7 inches in diameter including associated moss if present, that is 50 feet or more above the ground in trees 32 inches dbh and greater (generally over 90 years of age) and is capable of supporting nesting by marbled murrelets.
"Median home range circle" means a circle, with a specified radius, centered on a spotted owl site center. The radius for the median home range circle in the Hoh-Clearwater/Coastal Link SOSEA is 2.7 miles; for all other SOSEAs the radius is 1.8 miles.
"Merchantable stand of timber" means a stand of trees that will yield logs and/or fiber:
Suitable in size and quality for the production of lumber, plywood, pulp or other forest products;
Of sufficient value at least to cover all the costs of harvest and transportation to available markets.
"Multiyear permit" means a permit to conduct forest practices which is effective for longer than two years but no longer than five years.
"Northern spotted owl site center" means the location of status 1, 2 or 3 northern spotted owls based on the following definitions:
| Status 1: | Pair or reproductive - a male and female heard and/or observed in close proximity to each other on the same visit, a female detected on a nest, or one or both adults observed with young. |
| Status 2: | Two birds, pair status unknown - the presence or response of two birds of opposite sex where pair status cannot be determined and where at least one member meets the resident territorial single requirements. |
| Status 3: | Resident territorial single - the presence or response of a single owl within the same general area on three or more occasions within a breeding season with no response by an owl of the opposite sex after a complete survey; or three or more responses over several years (i.e., two responses in year one and one response in year two, for the same general area). |
"Notice to comply" means a notice issued by the department pursuant to RCW 76.09.090 of the act and may require initiation and/or completion of action necessary to prevent, correct and/or compensate for material damage to public resources which resulted from forest practices.
"Occupied marbled murrelet site" means:
(1) A contiguous area of suitable marbled murrelet habitat where at least one of the following marbled murrelet behaviors or conditions occur:
(a) A nest is located; or
(b) Downy chicks or eggs or egg shells are found; or
(c) Marbled murrelets are detected flying below, through, into or out of the forest canopy; or
(d) Birds calling from a stationary location within the area; or
(e) Birds circling above a timber stand within one tree height of the top of the canopy; or
(2) A contiguous forested area, which does not meet the definition of suitable marbled murrelet habitat, in which any of the behaviors or conditions listed above has been documented by the department of fish and wildlife and which is distinguishable from the adjacent forest based on vegetative characteristics important to nesting marbled murrelets.
(3) For sites defined in (1) and (2) above, the sites will be presumed to be occupied based upon observation of circling described in (1)(e), unless a two-year survey following the 2003 Pacific Seabird Group (PSG) protocol has been completed and an additional third-year of survey following a method listed below is completed and none of the behaviors or conditions listed in (1)(a) through (d) of this definition are observed. The landowner may choose one of the following methods for the third-year survey:
(a) Conduct a third-year survey with a minimum of nine visits conducted in compliance with 2003 PSG protocol. If one or more marbled murrelets are detected during any of these nine visits, three additional visits conducted in compliance with the protocol of the first nine visits shall be added to the third-year survey. Department of fish and wildlife shall be consulted prior to initiating third-year surveys; or
(b) Conduct a third-year survey designed in consultation with the department of fish and wildlife to meet site specific conditions.
(4) For sites defined in (1) above, the outer perimeter of the occupied site shall be presumed to be the closer, measured from the point where the observed behaviors or conditions listed in (1) above occurred, of the following:
(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or
(b) The beginning of any gap greater than 300 feet wide lacking one or more of the vegetative characteristics listed under "suitable marbled murrelet habitat"; or
(c) The beginning of any narrow area of "suitable marbled murrelet habitat" less than 300 feet in width and more than 300 feet in length.
(((4))) (5) For sites defined under (2) above, the outer
perimeter of the occupied site shall be presumed to be the
closer, measured from the point where the observed behaviors
or conditions listed in (1) above occurred, of the following:
(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or
(b) The beginning of any gap greater than 300 feet wide lacking one or more of the distinguishing vegetative characteristics important to murrelets; or
(c) The beginning of any narrow area of suitable marbled murrelet habitat, comparable to the area where the observed behaviors or conditions listed in (1) above occurred, less than 300 feet in width and more than 300 feet in length.
(((5))) (6) In determining the existence, location and
status of occupied marbled murrelet sites, the department
shall consult with the department of fish and wildlife and use
only those sites documented in substantial compliance with
guidelines or protocols and quality control methods
established by and available from the department of fish and
wildlife.
"Old forest habitat" see WAC 222-16-085 (1)(a).
"Operator" shall mean any person engaging in forest practices except an employee with wages as his/her sole compensation.
"Ordinary high-water mark" means the mark on the shores of all waters, which will be found by examining the beds and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation: Provided, That in any area where the ordinary high-water mark cannot be found, the ordinary high-water mark adjoining saltwater shall be the line of mean high tide and the ordinary high-water mark adjoining freshwater shall be the line of mean high-water.
"Other forest chemicals" means fire retardants when used to control burning (other than water), nontoxic repellents, oil, dust-control agents (other than water), salt, and other chemicals used in forest management, except pesticides and fertilizers, that may present hazards to the environment.
"Park" means any park included on the parks register maintained by the department pursuant to WAC 222-20-100(2). Developed park recreation area means any park area developed for high density outdoor recreation use.
"Partial cutting" means the removal of a portion of the merchantable volume in a stand of timber so as to leave an uneven-aged stand of well-distributed residual, healthy trees that will reasonably utilize the productivity of the soil. Partial cutting does not include seedtree or shelterwood or other types of regeneration cutting.
"Pesticide" means any insecticide, herbicide, fungicide, or rodenticide, but does not include nontoxic repellents or other forest chemicals.
"Plantable area" is an area capable of supporting a commercial stand of timber excluding lands devoted to permanent roads, utility rights-of-way, that portion of riparian management zones where scarification is not permitted, and any other area devoted to a use incompatible with commercial timber growing.
"Power equipment" means all machinery operated with fuel burning or electrical motors, including heavy machinery, chain saws, portable generators, pumps, and powered backpack devices.
"Preferred tree species" means the following species listed in descending order of priority for each timber habitat type:
| Ponderosa pine habitat type |
Mixed conifer habitat type |
|
| all hardwoods | all hardwoods | |
| ponderosa pine | western larch | |
| western larch | ponderosa pine | |
| Douglas-fir | western red cedar | |
| western red cedar | white pine | |
| Douglas-fir | ||
| lodgepole pine |
"Qualified surveyor" means an individual who has successfully completed the marbled murrelet field training course offered by the department of fish and wildlife or its equivalent.
"Rehabilitation" means the act of renewing, or making usable and reforesting forest land which was poorly stocked or previously nonstocked with commercial species.
"Resource characteristics" means the following specific measurable characteristics of fish, water, and capital improvements of the state or its political subdivisions:
For fish and water:
Physical fish habitat, including temperature and turbidity;
Turbiity in hatchery water supplies; and
Turbidity and volume for areas of water supply.
For capital improvements of the state or its political subdivisions:
Physical or structural integrity.
If the methodology is developed and added to the manual to analyze the cumulative effects of forest practices on other characteristics of fish, water, and capital improvements of the state or its subdivisions, the board shall amend this list to include these characteristics.
"Riparian function" includes bank stability, the recruitment of woody debris, leaf litter fall, nutrients, sediment filtering, shade, and other riparian features that are important to both riparian forest and aquatic system conditions.
"Riparian management zone (RMZ)" means:
(1) For Western Washington
(a) The area protected on each side of a Type S or F Water measured horizontally from the outer edge of the bankfull width or the outer edge of the CMZ, whichever is greater (see table below); and
| Site Class | Western Washington Total RMZ Width |
| I | 200' |
| II | 170' |
| III | 140' |
| IV | 110' |
| V | 90' |
(2) For Eastern Washington
(a) The area protected on each side of a Type S or F Water measured horizontally from the outer edge of the bankfull width or the outer edge of the CMZ, whichever is greater (see table below); and
| Site Class | Eastern Washington Total RMZ Width |
| I | 130' |
| II | 110' |
| III | 90' or 100'* |
| IV | 75' or 100'* |
| V | 75' or 100'* |
| * | Dependent upon stream size. (See WAC 222-30-022.) |
(3) For exempt 20 acre parcels, a specified area alongside Type S and F Waters where specific measures are taken to protect water quality and fish and wildlife habitat.
"RMZ core zone" means:
(1) For Western Washington, the 50 foot buffer of a Type S or F Water, measured horizontally from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-021.)
(2) For Eastern Washington, the 30 foot buffer of a Type S or F Water, measured horizontally from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-022.)
"RMZ inner zone" means:
(1) For Western Washington, the area measured horizontally from the outer boundary of the core zone of a Type S or F Water to the outer limit of the inner zone. The outer limit of the inner zone is determined based on the width of the affected water, site class and the management option chosen for timber harvest within the inner zone. (See WAC 222-30-021.)
(2) For Eastern Washington, the area measured horizontally from the outer boundary of the core zone 45 feet (for streams less than 15 feet wide) or 70 feet (for streams more than 15 feet wide) from the outer boundary of the core zone. (See WAC 222-30-022.)
"RMZ outer zone" means the area measured horizontally between the outer boundary of the inner zone and the RMZ width as specified in the riparian management zone definition above. RMZ width is measured from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-021 and 222-30-022.)
"Road construction" means the establishment of any new sub -grade including widening, realignment, or modification of an existing road prism, with the exception of replacing or installing drainage structures, for the purposes of managing forest land under Title 222 WAC.
"Road maintenance" means any road work specifically related to maintaining water control or road safety and visibility (such as; grading, spot rocking, resurfacing, roadside vegetation control, water barring, ditch clean out, replacing or installing relief culverts, cleaning culvert inlets and outlets) on existing forest roads.
"Rodenticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate rodents or any other vertebrate animal which the director of the state department of agriculture may declare by regulation to be a pest.
"Salvage" means the removal of snags, down logs, windthrow, or dead and dying material.
"Scarification" means loosening the topsoil and/or disrupting the forest floor in preparation for regeneration.
"Sensitive sites" are areas near or adjacent to Type Np Water and have one or more of the following:
(1) Headwall seep is a seep located at the toe of a cliff or other steep topographical feature and at the head of a Type Np Water which connects to the stream channel network via overland flow, and is characterized by loose substrate and/or fractured bedrock with perennial water at or near the surface throughout the year.
(2) Side-slope seep is a seep within 100 feet of a Type Np Water located on side-slopes which are greater than 20 percent, connected to the stream channel network via overland flow, and characterized by loose substrate and fractured bedrock, excluding muck with perennial water at or near the surface throughout the year. Water delivery to the Type Np channel is visible by someone standing in or near the stream.
(3) Type Np intersection is the intersection of two or more Type Np Waters.
(4) Headwater spring means a permanent spring at the head of a perennial channel. Where a headwater spring can be found, it will coincide with the uppermost extent of Type Np Water.
(5) Alluvial fan means an erosional land form consisting of cone-shaped deposit of water-borne, often coarse-sized sediments.
(a) The upstream end of the fan (cone apex) is typically characterized by a distinct increase in channel width where a stream emerges from a narrow valley;
(b) The downstream edge of the fan is defined as the sediment confluence with a higher order channel; and
(c) The lateral margins of a fan are characterized by distinct local changes in sediment elevation and often show disturbed vegetation.
Alluvial fan does not include features that were formed under climatic or geologic conditions which are not currently present or that are no longer dynamic.
"Shorelines of the state" shall have the same meaning as in RCW 90.58.030 (Shoreline Management Act).
"Side casting" means the act of moving excavated material to the side and depositing such material within the limits of construction or dumping over the side and outside the limits of construction.
"Site class" means a grouping of site indices that are used to determine the 50-year or 100-year site class. In order to determine site class, the landowner will obtain the site class index from the state soil survey, place it in the correct index range shown in the two tables provided in this definition, and select the corresponding site class. The site class will then drive the RMZ width. (See WAC 222-30-021 and 222-30-022.)
(1) For Western Washington
| Site class | 50-year site index range (state soil survey) |
| I | 137+ |
| II | 119-136 |
| III | 97-118 |
| IV | 76-96 |
| V | < 75 |
| Site class | 100-year site
index range (state soil survey) |
50-year site index range (state soil survey) |
| I | 120+ | 86+ |
| II | 101-120 | 72-85 |
| III | 81-100 | 58-71 |
| IV | 61-80 | 44-57 |
| V | ≤ 60 | < 44 |
(a) If the site index in the soil survey is for red alder, and the whole RMZ width is within that site index, then use site class V. If the red alder site index is only for a portion of the RMZ width, or there is on-site evidence that the site has historically supported conifer, then use the site class for conifer in the most physiographically similar adjacent soil polygon.
(b) In Western Washington, if no site index is reported in the soil survey, use the site class for conifer in the most physiographically similar adjacent soil polygon.
(c) In Eastern Washington, if no site index is reported in the soil survey, assume site class III, unless site specific information indicates otherwise.
(d) If the site index is noncommercial or marginally commercial, then use site class V.
See also section 7 of the board manual.
"Site preparation" means those activities associated with the removal of slash in preparing a site for planting and shall include scarification and/or slash burning.
"Skid trail" means a route used by tracked or wheeled skidders to move logs to a landing or road.
"Slash" means pieces of woody material containing more than 3 cubic feet resulting from forest practice activities.
"SOSEA goals" means the goals specified for a spotted owl special emphasis area as identified on the SOSEA maps (see WAC 222-16-086). SOSEA goals provide for demographic and/or dispersal support as necessary to complement the northern spotted owl protection strategies on federal land within or adjacent to the SOSEA.
"Spoil" means excess material removed as overburden or generated during road or landing construction which is not used within limits of construction.
"Spotted owl dispersal habitat" see WAC 222-16-085(2).
"Spotted owl special emphasis areas (SOSEA)" means the geographic areas as mapped in WAC 222-16-086. Detailed maps of the SOSEAs indicating the boundaries and goals are available from the department at its regional offices.
"Stop work order" means the "stop work order" defined in RCW 76.09.080 of the act and may be issued by the department to stop violations of the forest practices chapter or to prevent damage and/or to correct and/or compensate for damages to public resources resulting from forest practices.
"Stream-adjacent parallel roads" means roads (including associated right-of-way clearing) in a riparian management zone on a property that have an alignment that is parallel to the general alignment of the stream, including roads used by others under easements or cooperative road agreements. Also included are stream crossings where the alignment of the road continues to parallel the stream for more than 250 feet on either side of the stream. Not included are federal, state, county or municipal roads that are not subject to forest practices rules, or roads of another adjacent landowner.
"Sub-mature habitat" see WAC 222-16-085 (1)(b).
"Suitable marbled murrelet habitat" means a contiguous forested area containing trees capable of providing nesting opportunities:
(1) With all of the following indicators unless the department, in consultation with the department of fish and wildlife, has determined that the habitat is not likely to be occupied by marbled murrelets:
(a) Within 50 miles of marine waters;
(b) At least 40% of the dominant and codominant trees are Douglas-fir, western hemlock, western red cedar or sitka spruce;
(c) Two or more nesting platforms per acre;
(d) At least 7 acres in size, including the contiguous forested area within 300 feet of nesting platforms, with similar forest stand characteristics (age, species composition, forest structure) to the forested area in which the nesting platforms occur.
"Suitable spotted owl habitat" see WAC 222-16-085(1).
"Temporary road" means a forest road that is constructed and intended for use during the life of an approved forest practices application/notification. All temporary roads must be abandoned in accordance to WAC 222-24-052(3).
"Threaten public safety" means to increase the risk to the public at large from snow avalanches, identified in consultation with the department of transportation or a local government, or landslides or debris torrents caused or triggered by forest practices.
"Threatened or endangered species" means all species of wildlife listed as "threatened" or "endangered" by the United States Secretary of the Interior or Commerce, and all species of wildlife designated as "threatened" or "endangered" by the Washington fish and wildlife commission.
"Timber" shall mean forest trees, standing or down, of a commercial species, including Christmas trees.
"Unconfined avulsing stream" means generally fifth order or larger waters that experience abrupt shifts in channel location, creating a complex flood plain characterized by extensive gravel bars, disturbance species of vegetation of variable age, numerous side channels, wall-based channels, oxbow lakes, and wetland complexes. Many of these streams have dikes and levees that may temporarily or permanently restrict channel movement.
"Water bar" means a diversion ditch and/or hump in a trail or road for the purpose of carrying surface water runoff into the vegetation duff, ditch, or other dispersion area so that it does not gain the volume and velocity which causes soil movement and erosion.
"Watershed administrative unit (WAU)" means an area shown on the map specified in WAC 222-22-020(1).
"Watershed analysis" means, for a given WAU, the assessment completed under WAC 222-22-050 or 222-22-060 together with the prescriptions selected under WAC 222-22-070 and shall include assessments completed under WAC 222-22-050 where there are no areas of resource sensitivity.
"Weed" is any plant which tends to overgrow or choke out more desirable vegetation.
"Western Washington" means the geographic area of Washington west of the Cascade crest and the drainages defined in Eastern Washington.
"Wetland" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, such as swamps, bogs, fens, and similar areas. This includes wetlands created, restored, or enhanced as part of a mitigation procedure. This does not include constructed wetlands or the following surface waters of the state intentionally constructed from wetland sites: Irrigation and drainage ditches, grass lined swales, canals, agricultural detention facilities, farm ponds, and landscape amenities.
"Wetland functions" include the protection of water quality and quantity, providing fish and wildlife habitat, and the production of timber.
"Wetland management zone" means a specified area adjacent to Type A and B Wetlands where specific measures are taken to protect the wetland functions.
"Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state. The term "wildlife" includes, but is not limited to, any mammal, bird, reptile, amphibian, fish, or invertebrate, at any stage of development. The term "wildlife" does not include feral domestic mammals or the family Muridae of the order Rodentia (old world rats and mice).
"Wildlife reserve trees" means those defective, dead, damaged, or dying trees which provide or have the potential to provide habitat for those wildlife species dependent on standing trees. Wildlife reserve trees are categorized as follows:
Type 1 wildlife reserve trees are defective or deformed live trees that have observably sound tops, limbs, trunks, and roots. They may have part of the top broken out or have evidence of other severe defects that include: "Cat face," animal chewing, old logging wounds, weather injury, insect attack, or lightning strike. Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 1 wildlife reserve trees. These trees must be stable and pose the least hazard for workers.
Type 2 wildlife reserve trees are dead Type 1 trees with sound tops, limbs, trunks, and roots.
Type 3 wildlife reserve trees are live or dead trees with unstable tops or upper portions. Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 3 wildlife reserve trees. Although the roots and main portion of the trunk are sound, these reserve trees pose high hazard because of the defect in live or dead wood higher up in the tree.
Type 4 wildlife reserve trees are live or dead trees with unstable trunks or roots, with or without bark. This includes "soft snags" as well as live trees with unstable roots caused by root rot or fire. These trees are unstable and pose a high hazard to workers.
"Windthrow" means a natural process by which trees are uprooted or sustain severe trunk damage by the wind.
"Yarding corridor" means a narrow, linear path through a riparian management zone to allow suspended cables necessary to support cable logging methods or suspended or partially suspended logs to be transported through these areas by cable logging methods.
"Young forest marginal habitat" see WAC 222-16-085 (1)(b).
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-16-010, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-16-010, filed 3/13/98, effective 5/1/98; 97-24-091, § 222-16-010, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-16-010, filed 7/21/97, effective 8/21/97. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-16-010, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 94-17-033, § 222-16-010, filed 8/10/94, effective 8/13/94; 93-12-001, § 222-16-010, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-16-010, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 92-03-028, § 222-16-010, filed 1/8/92, effective 2/8/92; 91-23-052, § 222-16-010, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-16-010, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), § 222-16-010, filed 11/16/87, effective 1/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-16-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-16-010, filed 6/16/76.]
Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.