AN
ACT Relating to forest practices landscape management plan pilot projects; amending
RCW 76.09.060, 75.20.100, and 76.09.220; adding new sections to chapter 76.09
RCW; and creating a new section.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. A
new section is added to chapter 76.09 RCW to read as follows:
The
legislature recognizes the importance of providing the greatest diversity of
habitats, particularly riparian, wetland, and old growth habitats, and of
assuring the greatest diversity of species within those habitats for the
survival and reproduction of enough individuals to maintain the native wildlife
of Washington forest lands. The legislature also recognizes the importance of
long-term habitat productivity for natural and wild fish, for the protection of
hatchery water supplies, and for the protection of water quality and quantity
to meet the needs of people, fish, and wildlife. The legislature recognizes
the importance of maintaining and enhancing fish and wildlife habitats capable of
sustaining the commercial and noncommercial uses of fish and wildlife. The
legislature further recognizes the importance of the continued growth and
development of the state's forest products industry which has a vital stake in
the long-term productivity of both the public and private forest land base.
The
development of a landscape planning system would help achieve these goals.
Landowners and resource managers should be provided incentives to voluntarily
develop long-term multispecies landscape management plans that will provide
protection to public resources. Because landscape planning represents a
departure from the use of standard baseline rules and may result in unintended
consequences to both the affected habitats and to a landowner's economic interests,
the legislature desires to establish up to seven experimental pilot programs to
gain experience with landscape planning that may prove useful in fashioning
legislation of a more general application.
(1)
Until December 31, 2000, the department in cooperation with the department of
fish and wildlife, and the department of ecology when relating to water quality
protection, is granted authority to select not more than seven pilot projects
for the purpose of developing individual landowner multispecies landscape
management plans.
(a)
Pilot project participants must be selected by the department in cooperation
with the department of fish and wildlife, and the department of ecology when
relating to water quality protection, no later than October 1, 1997.
(b)
The number and the location of the pilot projects are to be determined by the
department in cooperation with the department of fish and wildlife, and the
department of ecology when relating to water quality protection, and should be
selected on the basis of risk to the habitat and species, variety and
importance of species and habitats in the planning area, geographic
distribution, surrounding ownership, other ongoing landscape and watershed
planning activities in the area, potential benefits to water quantity and
quality, financial and staffing capabilities of participants, and other factors
that will contribute to the creation of landowner multispecies landscape
planning efforts.
(c)
Each pilot project shall have a landscape management plan with the following
elements:
(i)
An identification of public resources selected for coverage under the plan and
measurable objectives for the protection of the selected public resources;
(ii)
A termination date of not later than 2050;
(iii)
A general description of the planning area including its geographic location,
physical and biological features, habitats, and species known to be present;
(iv)
An identification of the existing forest practices rules that will not apply
during the term of the plan;
(v)
Proposed habitat management strategies or prescriptions;
(vi)
A projection of the habitat conditions likely to result from the implementation
of the specified management strategies or prescriptions;
(vii)
An assessment of habitat requirements and the current habitat conditions of
representative species included in the plan;
(viii)
An assessment of potential or likely impacts to representative species
resulting from the prescribed forest practices;
(ix)
A description of the anticipated benefits to those species or other species as
a result of plan implementation;
(x)
A monitoring plan;
(xi)
Reporting requirements including a schedule for review of the plan's
performance in meeting its objectives;
(xii)
Conditions under which a plan may be modified, including a procedure for
adaptive management;
(xiii)
Conditions under which a plan may be terminated;
(xiv)
A procedure for adaptive management that evaluates the effectiveness of the
plan to meet its measurable public resources objectives, reflects changes in
the best available science, and provides changes to its habitat management
strategies, prescriptions, and hydraulic project standards to the extent agreed
to in the plan and in a timely manner and schedule;
(xv)
A description of how the plan relates to publicly available plans of adjacent
federal, state, tribal, and private timberland owners; and
(xvi)
A statement of whether the landowner intends to apply for approval of the plan
under applicable federal law.
(2)
Until December 31, 2000, the department, in agreement with the department of
fish and wildlife, and the department of ecology when the landowner elects to
cover water quality in the plan, shall approve a landscape management plan and
enter into a binding implementation agreement with the landowner when such
departments find, based upon the best scientific data available, that:
(a)
The plan contains all of the elements required under this section including
measurable public resource objectives;
(b)
The plan is expected to be effective in meeting those objectives;
(c)
The landowner has sufficient financial resources to implement the management
strategies or prescriptions to be implemented by the landowner under the plan;
(d)
The plan will:
(i)
Provide better protection than current state law for the public resources
selected for coverage under the plan considered in the aggregate; and
(ii)
Compared to conditions that could result from compliance with current state
law:
(A)
Not result in poorer habitat conditions over the life of the plan for any
species selected for coverage that is listed as threatened or endangered under
federal or state law, or that has been identified as a candidate for such
listing, at the time the plan is approved; and
(B)
Measurably improve habitat conditions for species selected for special
consideration under the plan;
(e)
The plan shall include watershed analysis or provide for a level of protection
that meets or exceeds the protection that would be provided by watershed
analysis, if the landowner selects fish or water quality as a public resource
to be covered under the plan. Any alternative process to watershed analysis
would be subject to timely peer review;
(f)
The planning process provides for a public participation process during the
development of the plan, which shall be developed by the department in
cooperation with the landowner.
The
management plans must be submitted to the department and the department of fish
and wildlife, and the department of ecology when the landowner elects to cover
water quality in the plan, no later than March 1, 2000. The department shall
provide an opportunity for public comment on the proposed plan. The comment
period shall not be less than forty-five days. The department shall approve or
reject plans within one hundred twenty days of submittal by the landowner of a
final plan. The decision by the department, in agreement with the department
of fish and wildlife, and the department of ecology when the landowner has elected
to cover water quality in the plan, to approve or disapprove the management
plan is subject to the environmental review process of chapter 43.21C RCW,
provided that any public comment period provided for under chapter 43.21C RCW
shall run concurrently with the public comment period provided in this
subsection (2).
(3)
After a landscape management plan is adopted:
(a)
Forest practices consistent with the plan need not comply with:
(i)
The specific forest practices rules identified in the plan; and
(ii)
Any forest practice rules and policies adopted after the approval of the plan
to the extent that the rules:
(A)
Have been adopted primarily for the protection of a public resource selected
for coverage under the plan; or
(B)
Provide for procedural or administrative obligations inconsistent with or in
addition to those provided for in the plan with respect to those public
resources; and
(b)
If the landowner has selected fish as one of the public resources to be covered
under the plan, the plan shall serve as the hydraulic project approval for the
life of the plan, in compliance with RCW 75.20.100.
(4)
The department is authorized to issue a single landscape level permit valid for
the life of the plan to a landowner who has an approved landscape management
plan and who has requested a landscape permit from the department. Landowners
receiving a landscape level permit shall meet annually with the department and
the department of fish and wildlife, and the department of ecology where water
quality has been selected as a public resource to be covered under the plan, to
review the specific forest practices activities planned for the next twelve
months and to determine whether such activities are in compliance with the
plan. The departments will consult with the affected Indian tribes and other
interested parties who have expressed an interest in connection with the
review. The landowner is to provide ten calendar days' notice to the
department prior to the commencement of any forest practices authorized under a
landscape level permit. The landscape level permit will not impose additional
conditions relating to the public resources selected for coverage under the
plan beyond those agreed to in the plan. For the purposes of chapter 43.21C
RCW, forest practices conducted in compliance with an approved plan are deemed
not to have the potential for a substantial impact on the environment as to any
public resource selected for coverage under the plan.
(5)
Except as otherwise provided in a plan, the agreement implementing the
landscape management plan is an agreement that runs with the property covered
by the approved landscape management plan and the department shall record
notice of the plan in the real property records of the counties in which the
affected properties are located. Prior to its termination, no plan shall permit
forest land covered by its terms to be withdrawn from such coverage, whether by
sale, exchange, or other means, nor to be converted to nonforestry uses except
to the extent that such withdrawal or conversion would not measurably impair
the achievement of the plan's stated public resource objectives. If a
participant transfers all or part of its interest in the property, the terms of
the plan still apply to the new landowner for the plan's stated duration unless
the plan is terminated under its terms or unless the plan specifies the
conditions under which the terms of the plan do not apply to the new landowner.
(6)
The departments of natural resources, fish and wildlife, and ecology shall seek
to develop memorandums of agreements with federal agencies and affected Indian
tribes relating to tribal issues in the landscape management plans. The
departments shall solicit input from affected Indian tribes in connection with
the selection, review, and approval of any landscape management plan. If any
recommendation is received from an affected Indian tribe and is not adopted by
the departments, the departments shall provide a written explanation of their
reasons for not adopting the recommendation.
(7)
The department is directed to report to the forest practices board annually
through the year 2000, but no later than December 31st of each year, on the
status of each pilot project. The department is directed to provide to the
forest practices board, no later than December 31, 2000, an evaluation of the
pilot projects including a determination if a permanent landscape planning
process should be established along with a discussion of what legislative and
rule modifications are necessary.
NEW
SECTION. Sec. 2. A
new section is added to chapter 76.09 RCW to read as follows:
The
department together with the department of fish and wildlife, and the
department of ecology relating to water quality protection, shall develop a
suitable process to permit landowners to secure all permits required for the
conduct of forest practices in a single multiyear permit to be jointly issued
by the departments and the departments shall report their findings to the legislature
not later than December 31, 2000.
Sec.
3. RCW
76.09.060 and 1993 c 443 s 4 are each amended to read as follows:
(1)
The department shall prescribe the form and contents of the notification and
application. The forest practices rules shall specify by whom and under what
conditions the notification and application shall be signed or otherwise
certified as acceptable. The application or notification shall be delivered in
person to the department, sent by first class mail to the department or
electronically filed in a form defined by the department. The form for
electronic filing shall be readily convertible to a paper copy, which shall be
available to the public pursuant to chapter 42.17 RCW. The information
required may include, but is not limited to:
(a)
Name and address of the forest landowner, timber owner, and operator;
(b)
Description of the proposed forest practice or practices to be conducted;
(c)
Legal description of the land on which the forest practices are to be
conducted;
(d)
Planimetric and topographic maps showing location and size of all lakes and
streams and other public waters in and immediately adjacent to the operating
area and showing all existing and proposed roads and major tractor roads;
(e)
Description of the silvicultural, harvesting, or other forest practice methods
to be used, including the type of equipment to be used and materials to be
applied;
(f)
Proposed plan for reforestation and for any revegetation necessary to reduce
erosion potential from roadsides and yarding roads, as required by the forest
practices rules;
(g)
Soil, geological, and hydrological data with respect to forest practices;
(h)
The expected dates of commencement and completion of all forest practices
specified in the application;
(i)
Provisions for continuing maintenance of roads and other construction or other
measures necessary to afford protection to public resources;
(j)
An affirmation that the statements contained in the notification or application
are true; and
(k)
All necessary application or notification fees.
(2)
Long range plans may be submitted to the department for review and
consultation.
(3)
The application for a forest practice or the notification of a class II forest
practice shall indicate whether any land covered by the application or
notification will be converted or is intended to be converted to a use other
than commercial timber production within three years after completion of the
forest practices described in it.
(a)
If the application states that any such land will be or is intended to be so
converted:
(i)
The reforestation requirements of this chapter and of the forest practices
rules shall not apply if the land is in fact so converted unless applicable
alternatives or limitations are provided in forest practices rules issued under
RCW 76.09.070 as now or hereafter amended;
(ii)
Completion of such forest practice operations shall be deemed conversion of the
lands to another use for purposes of chapters 84.33 and 84.34 RCW unless the
conversion is to a use permitted under a current use tax agreement permitted
under chapter 84.34 RCW;
(iii)
The forest practices described in the application are subject to applicable
county, city, town, and regional governmental authority permitted under RCW
76.09.240 as now or hereafter amended as well as the forest practices rules.
(b)
If the application or notification does not state that any land covered by the
application or notification will be or is intended to be so converted:
(i)
For six years after the date of the application the county, city, town, and
regional governmental entities may deny any or all applications for permits or
approvals, including building permits and subdivision approvals, relating to
nonforestry uses of land subject to the application;
(ii)
Failure to comply with the reforestation requirements contained in any final
order or decision shall constitute a removal of designation under the
provisions of RCW 84.33.140, and a change of use under the provisions of RCW
84.34.080, and, if applicable, shall subject such lands to the payments and/or
penalties resulting from such removals or changes; and
(iii)
Conversion to a use other than commercial timber operations within three years
after completion of the forest practices without the consent of the county,
city, or town shall constitute a violation of each of the county, municipal
city, town, and regional authorities to which the forest practice operations
would have been subject if the application had so stated.
(c)
The application or notification shall be either signed by the landowner or
accompanied by a statement signed by the landowner indicating his or her intent
with respect to conversion and acknowledging that he or she is familiar with
the effects of this subsection.
(4)
Whenever an approved application authorizes a forest practice which, because of
soil condition, proximity to a water course or other unusual factor, has a
potential for causing material damage to a public resource, as determined by
the department, the applicant shall, when requested on the approved
application, notify the department two days before the commencement of actual
operations.
(5)
Before the operator commences any forest practice in a manner or to an extent
significantly different from that described in a previously approved
application or notification, there shall be submitted to the department a new
application or notification form in the manner set forth in this section.
(6)
Except as provided in section 1(4) of this act, the notification to or
the approval given by the department to an application to conduct a forest
practice shall be effective for a term of two years from the date of approval
or notification and shall not be renewed unless a new application is filed and
approved or a new notification has been filed. At the option of the applicant,
an application or notification may be submitted to cover a single forest
practice or a number of forest practices within reasonable geographic or
political boundaries as specified by the department. An application or
notification that covers more than one forest practice may have an effective
term of more than two years. The board shall adopt rules that establish
standards and procedures for approving an application or notification that has
an effective term of more than two years. Such rules shall include extended
time periods for application or notification approval or disapproval. On an
approved application with a term of more than two years, the applicant shall
inform the department before commencing operations.
(7)
Notwithstanding any other provision of this section, no prior application or
notification shall be required for any emergency forest practice necessitated
by fire, flood, windstorm, earthquake, or other emergency as defined by the
board, but the operator shall submit an application or notification, whichever
is applicable, to the department within forty-eight hours after commencement of
such practice.
Sec.
4. RCW
75.20.100 and 1993 sp.s. c 2 s 30 are each amended to read as follows:
In
the event that any person or government agency desires to construct any form of
hydraulic project or perform other work that will use, divert, obstruct, or
change the natural flow or bed of any of the salt or fresh waters of the state,
such person or government agency shall, before commencing construction or work
thereon and to ensure the proper protection of fish life, secure the written
approval of the department as to the adequacy of the means proposed for the
protection of fish life. This approval shall not be unreasonably withheld. Except
as provided in RCW 75.20.1001 ((and 75.20.1002)), the department shall
grant or deny approval within forty-five calendar days of the receipt of a
complete application and notice of compliance with any applicable requirements
of the state environmental policy act, made in the manner prescribed in this
section. The applicant may document receipt of application by filing in person
or by registered mail. A complete application for approval shall contain
general plans for the overall project, complete plans and specifications of the
proposed construction or work within the mean higher high water line in salt
water or within the ordinary high water line in fresh water, and complete plans
and specifications for the proper protection of fish life. The forty-five day
requirement shall be suspended if (1) after ten working days of receipt of the
application, the applicant remains unavailable or unable to arrange for a
timely field evaluation of the proposed project; (2) the site is physically
inaccessible for inspection; or (3) the applicant requests delay. Immediately
upon determination that the forty-five day period is suspended, the department
shall notify the applicant in writing of the reasons for the delay. Approval
is valid for a period of up to five years from date of issuance. The permittee
must demonstrate substantial progress on construction of that portion of the
project relating to the approval within two years of the date of issuance. If
the department denies approval, the department shall provide the applicant, in
writing, a statement of the specific reasons why and how the proposed project
would adversely affect fish life. Protection of fish life shall be the only
ground upon which approval may be denied or conditioned. Chapter 34.05 RCW applies
to any denial of project approval, conditional approval, or requirements for
project modification upon which approval may be contingent. If any person or
government agency commences construction on any hydraulic works or projects
subject to this section without first having obtained written approval of the
department as to the adequacy of the means proposed for the protection of fish
life, or if any person or government agency fails to follow or carry out any of
the requirements or conditions as are made a part of such approval, the person
or director of the agency is guilty of a gross misdemeanor. If any such person
or government agency is convicted of violating any of the provisions of this
section and continues construction on any such works or projects without fully
complying with the provisions hereof, such works or projects are hereby
declared a public nuisance and shall be subject to abatement as such.
For
the purposes of this section and RCW 75.20.103, "bed" shall mean the
land below the ordinary high water lines of state waters. This definition
shall not include irrigation ditches, canals, storm water run-off devices, or
other artificial watercourses except where they exist in a natural watercourse
that has been altered by man.
The
phrase "to construct any form of hydraulic project or perform other
work" shall not include the act of driving across an established ford.
Driving across streams or on wetted stream beds at areas other than established
fords requires approval. Work within the ordinary high water line of state
waters to construct or repair a ford or crossing requires approval.
In
case of an emergency arising from weather or stream flow conditions or other
natural conditions, the department, through its authorized representatives, shall
issue immediately upon request oral approval for removing any obstructions,
repairing existing structures, restoring stream banks, or to protect property
threatened by the stream or a change in the stream flow without the necessity
of obtaining a written approval prior to commencing work. Conditions of an
oral approval shall be reduced to writing within thirty days and complied with
as provided for in this section. Oral approval shall be granted immediately
upon request, for a stream crossing during an emergency situation.
This
section shall not apply to the construction of any form of hydraulic project or
other work which diverts water for agricultural irrigation or stock watering
purposes authorized under or recognized as being valid by the state's water
codes, or when such hydraulic project or other work is associated with
streambank stabilization to protect farm and agricultural land as defined in
RCW 84.34.020. These irrigation or stock watering diversion and streambank
stabilization projects shall be governed by RCW 75.20.103.
A
landscape management plan approved by the department and the department of
natural resources under section 1(2) of this act, shall serve as a hydraulic
project approval for the life of the plan if fish are selected as one of the
public resources for coverage under such a plan.
Sec.
5. RCW
76.09.220 and 1989 c 175 s 164 are each amended to read as follows:
(1)
The appeals board shall operate on either a part-time or a full-time basis, as
determined by the governor. If it is determined that the appeals board shall
operate on a full-time basis, each member shall receive an annual salary to be
determined by the governor. If it is determined that the appeals board shall
operate on a part-time basis, each member shall be compensated in accordance
with RCW 43.03.240((: PROVIDED, That)). However, such
compensation shall not exceed ten thousand dollars in a fiscal year. Each
member shall receive reimbursement for travel expenses incurred in the discharge
of his duties in accordance with the provisions of RCW 43.03.050 and 43.03.060.
(2)
The appeals board shall as soon as practicable after the initial appointment of
the members thereof, meet and elect from among its members a ((chairman))
chair, and shall at least biennially thereafter meet and elect or
reelect a ((chairman)) chair.
(3)
The principal office of the appeals board shall be at the state capital, but it
may sit or hold hearings at any other place in the state. A majority of the
appeals board shall constitute a quorum for making orders or decisions,
promulgating rules and regulations necessary for the conduct of its powers and
duties, or transacting other official business, and may act though one position
on the board be vacant. One or more members may hold hearings and take
testimony to be reported for action by the board when authorized by rule or
order of the board. The appeals board shall perform all the powers and duties
granted to it in this chapter or as otherwise provided by law.
(4)
The appeals board shall make findings of fact and prepare a written decision in
each case decided by it, and such findings and decision shall be effective upon
being signed by two or more members and upon being filed at the appeals board's
principal office, and shall be open to public inspection at all reasonable
times.
(5)
The appeals board shall either publish at its expense or make arrangements with
a publishing firm for the publication of those of its findings and decisions
which are of general public interest, in such form as to assure reasonable
distribution thereof.
(6)
The appeals board shall maintain at its principal office a journal which shall
contain all official actions of the appeals board, with the exception of
findings and decisions, together with the vote of each member on such actions.
The journal shall be available for public inspection at the principal office of
the appeals board at all reasonable times.
(7)
The forest practices appeals board shall have exclusive jurisdiction to hear
appeals arising from an action or determination by the department, and the
department of fish and wildlife, and the department of ecology with respect to
management plans provided for under section 1 of this act.
(8)(a)
Any person aggrieved by the approval or disapproval of an application to
conduct a forest practice or the approval or disapproval of any landscape
plan or permit may seek review from the appeals board by filing a request
for the same within thirty days of the approval or disapproval. Concurrently
with the filing of any request for review with the board as provided in this
section, the requestor shall file a copy of his or her request with the
department and the attorney general. The attorney general may intervene to
protect the public interest and ((insure)) ensure that the
provisions of this chapter are complied with.
(b)
The review proceedings authorized in ((subparagraph)) (a) of this
subsection are subject to the provisions of chapter 34.05 RCW pertaining to
procedures in adjudicative proceedings.
NEW SECTION. Sec. 6. If
specific funding for purposes of this act, referencing this act by bill or
chapter number, is not provided by June 30, 1997, in the omnibus appropriations
act, this act is null and void.
