In
1986, representatives of tribes, the Departments of Fisheries and Game, the
timber industry and environmental interests met to determine if they could
collectively prepare alternative regulations to those prepared by the Forest
Practices Board. The process became known as Timber Fish Wildlife, or TFW. In
December 1986, the TFW participants reached an agreement on a proposed
regulatory framework, which became the basis of current regulation.
In
1997, faced with an imminent listing of several salmon species in Washington
the TFW participants, in addition to representatives from federal agencies,
reconvened to develop a comprehensive plan to address salmon and other aquatic
species on forest lands. After several months of negotiation, representatives
of environmental interests withdrew from negotiations. The process became
known as the forestry module of the state salmon plan. The resulting plan
includes legislation and the forests and fish report upon which rules are to be
based. The legislation and rules address the recovery of salmon and other
aquatic species on approximately 10 million acres of forest lands regulated
under the Forest Practices Act.
The Endangered Species Act
The Endangered Species Act was originally
enacted by the United States Congress in 1973, to provide a means whereby the
ecosystems upon which endangered species and threatened species depend may be
conserved. The act provides a procedure whereby species of plants and animals
may be nominated and eventually listed as Athreatened@ or Aendangered.@
Whenever a species is listed, the
secretary of the listing agency (either the Department of Interior or the
Department of Commerce) must issue regulations necessary to provide for the
conservation of the species. Such a rule is often referred to as a section
4(d) rule.
Once a species is listed, the act
provides a broad list of prohibited acts, including the Ataking@ of an
individual of the species. ATake@ is defined very broadly by the act, and
has been interpreted by the United States Supreme Court to include the
modification of a species= habitat.
A secretary may permit the taking of an
individual within a listed species if such a taking is incidental to, and not
the purpose of, an otherwise lawful activity. Such a permit requires the
submittal of an acceptable conservation plan which specifies, among other
things, mitigation for the taking. Such a permit is often referred to as an Aincidental
take permit.@
In Washington, Upper Columbia steelhead
have been listed as endangered, Snake River and Lower Columbia steelhead and
Columbia River bull trout have been listed as threatened, and Puget Sound
chinook salmon and other salmonids are being considered for listing.
The Clean Water Act
The objective of the Clean Water Act is
to restore and maintain the chemical, physical, and biological integrity of the
nation=s waters. This act provides a regulatory framework for
effluent discharges into navigable waters. Individual states are given the
authority to implement state-specific pollution control strategies within the federal
framework. Effluent sources are divided into two types, point and non-point.
Effluent sources falling into the first category are controlled through
distinct effluent limitations. Non-point sources, which include discharges
from non-discrete sources such as agricultural fields, parking lots, streets,
and forest lands, are addressed in a voluntary manner. States may prepare a
management program for non-point source pollution. Such programs must include
the identification of best management practices for non-point sources which
will be undertaken to reduce pollutant loadings.
In Washington, the forest practices rules
adopted by the Forest Practices Board include provisions for the control of
non-point source pollution. These provisions are promulgated with the input of
the Department of Ecology, who has a representative on the Forest Practices
Board, and who also promulgates the provisions under the state=s Clean Water
Act.
In Washington, over 660 streams have been
identified as having water quality problems under the Clean Water Act.
Forest Practices Rules
The
Forest Practices Board was created in 1974 and consists of 11 members,
appointed or designated as follows: the Commissioner of Public Lands or the
commissioner's designee; the director of the Department of Community, Trade and
Economic Development or the director's designee; the director of the Department
of Agriculture or the director's designee; the director of the Department of
Ecology or the director's designee; an elected member of a county legislative
authority, appointed by the Governor; and six public members, appointed by the
Governor, to include an owner of not more than 500 acres of forest land and an
independent logging contractor. Members serve staggered, four-year terms.
Statute
directs the Forest Practices Board to adopt rules where necessary to accomplish
the purposes and policies established by the Legislature and to implement other
provisions of the forest practices chapter. Specifically, the board is to
establish minimum standards for forest practices. The board adopts rules
pursuant to the Administrative Procedure Act.
There
are four classifications of forest practices, each with its own set of
requirements. A class I forest practice is a forest practice with no direct
potential for damaging a public resource. These practices may be commenced
without any application or notification to the department. A class II forest
practice is a forest practice with less than ordinary potential for damaging a
public resource. These practices require notification to the department but do
not require any type of application. A class III forest practice is a forest
practice that is not a class I, II, or IV. A person wishing to commence a
class III practice must submit an application to the department. The
department has 30 days to either approve or disapprove a class III application.
Class
IV forest practices are those practices which have a potential for a
substantial impact on the environment or are on lands platted after 1960, lands
being converted to another use, or lands not to be reforested because of the
likelihood of future conversion to urban development. Class IV breaks down
further into class IV - General and class IV - Special. If a certain forest
practice is proposed within habitat with a special designation due to a
threatened or endangered species, that forest practice becomes a class IV -
Special. A person wishing to commence a class IV forest practice must submit
an application to the department. The department decides whether a detailed
statement must be prepared by the applicant under the State Environmental
Policy Act. The department has 30 calendar days from date of receipt of the
application to either approve or disapprove it, unless the detailed statement
is required. If the statement is required, the application must be approved or
disapproved within 60 days unless the commissioner issues an order determining
that the process cannot be completed within the allotted time.
The
department exercises authority to condition forest practices applications to
prevent material damage to public resources. "Material damage" is
not defined in current law. "Public resources" means water, fish and
wildlife, and capital improvements of the state or its political subdivisions.
If
a person is aggrieved by the condition on the application's approval, that
person may appeal the department's decision to the Forest Practices Appeals
Board. The Forest Practices Appeals Board is a three-member board within the
Environmental Hearings Office which hears a number of different kinds of
appeals involving forest practices. The presiding officer in an appeals hearing
has the authority to receive relevant evidence, and to secure and present in an
impartial manner such evidence as the officer deems necessary to fairly and equitably
decide the appeal.
The
department has the authority under current law to issue a stop work order in
three cases: (1) if there is a violation of the provisions of Chapter 76.09
RCW or the forest practices rules; (2) if there is a deviation from the
approved application; or (3) if immediate action is necessary to prevent
continuation of or to avoid material damage to a public resource.
If
the department issues a stop work order, the department immediately files a
copy of the order with the Forest Practices Appeals Board and mails a copy to
the timber owner and landowner identified on the forest practices application.
If the operator, timber owner, or landowner appeals the stop work order, the
department must prove that one of the three above conditions justified issuing
the order. The presiding officer at the appeals hearing has the authority to
receive relevant evidence.
If
a violation, a deviation, material damage, or potential for material damage to
a public resource has occurred, and the department determines that a stop work
order is unnecessary, then the department instead issues a notice to comply.
If the person receiving the notice so chooses, that person may request a
hearing on the notice before the department. The final order issued by the
department after this hearing may be appealed to the Forest Practices Appeals
Board. The proceedings before the appeals board are under the same guidelines
as an appeal of a stop work order or any other case before the appeals board.
A watershed analysis is an assessment of
the condition of a watershed=s resources, and the cumulative effect of
forest practices within the watershed. These assessments may be performed by
the Department of Natural Resources according to a statewide priority list, or
by an individual landowner utilizing experts trained by the department. Forest
practices prescriptions are written for the watershed based upon the results of
the analysis. These prescriptions become requirements for forest practices
applications.
Summary
of Bill:
The bill is one portion of the state=s
comprehensive salmon recovery program which also includes the state salmon
strategy, and the forest and fish report. The bill, which incorporates the
forests and fish report by reference, is intended to fully satisfy the
Endangered Species Act through its incidental take provisions and the Clean
Water Act=s non-point source pollution provisions. The bill
addresses forest practices on all non-federal forest lands in the state.
The bill also intends to coordinate forest
practice rules relating to Aaquatic resources@ with other
land uses, through the statewide salmon recovery planning process. AAquatic resources@ is defined to
mean water quality, certain species of fish (including salmon), and the habitat
of those species.
Forest Practices Board Rulemaking
The Forest Practices Board is required to
amend the Forest Practices rules to implement the prescriptions in the forests
and fish report. The board is authorized to first adopt interim rules
implementing all or a portion of the forests and fish report, prior to final
adoption. This adoption of interim rules need not comply with procedures in
the Forest Practices Act, the Administrative Procedure Act, the Regulatory
Fairness Act, or the State Environmental Protection Act.
In amending the Forest Practices Rules,
the board may only deviate from the recommendations in the forests and fish
report upon a) a super-majority vote of the board; b) a finding that deviation
is necessary to prevent material damage to a public resource; c) a finding that
an alternative rule can be adopted without jeopardizing the economic viability
of timber industry; and d) a finding that an alternative rule accomplishes the
purpose of the Forest Practices Act.
Final rules must be adopted within 24
months of adoption of the bill. Once implemented, the rules can only be
changed if they go through the adaptive management process established in the
forests and fish report. The adaptive management process does not need to be
followed in these circumstances: a) If consensus is not reached through the
completed adaptive management process; b) If legislative appropriations for the
process are inadequate; c) If a court order requires the board to adopt or
modify the rules; or d) If further state legislation requires additional rules
or modifications.
When adopting rules pertaining to water
quality protection, agreement must be reached with the director of the
Department of Ecology.
Federal Assurances
The bill contemplates that adoption of
the forest practices prescriptions found in the forest and fish report through
rulemaking, will meet the requirements of federal law, including the Endangered
Species Act and Clean Water Act. The forest and fish report describes the
assurances that the federal government will make to the state of Washington
upon adoption of the forest and fish report.
The bill describes the events that
constitute a failure of assurances. These are: a) failure by the National
Marine Fisheries Service or the United States Fish and Wildlife Service to
promulgate a section 4(d) rule under the Endangered Species Act, or failure of
such a rule to include an incidental take permit; b) promulgation of a section
4(d) rule that precludes forest practices consistent with the prescriptions in
the forest and fish report; c) failure by either the Secretary of Interior or
Secretary of Commerce to issue an acceptable incidental take permit covering
all species included as Aaquatic resources@ before June
30, 2003; d) failure of the Environmental Protection Agency or the Department
of Ecology to provide Clean Water Act assurances as described in Appendix M of
the forests and fish report; or e) reversal of these assurances by subsequent
federal legislation, rulemaking, or court decision.
An Endangered Species Act incidental take
permit is acceptable if it: a) permits the incidental take of species included
as Aaquatic resources@ from the conduct of forest practices in
compliance with the report; b) provides protection to the state, subdivisions,
landowners, and operators; c) does not require the commitment of resources in
addition to those in the forest and fish report; and d) provides Ano surprises@ protection
under 50 CFR parts 17 and 222.
The Governor is allowed to negotiate to
obtain assurances from federal agencies.
General Compensation to Landowners
The bill anticipates that private forest
landowners will be awarded some level of compensation for compliance. The
section addressing this compensation is left blank.
The bill also reduces the amount that may
be collected by the Department of Revenue for the administration and collection
of county and state forest excise taxes. County collection is reduced to 66
percent of the total collected and state collection is reduced to 34 percent of
the total collected.
Forestry Riparian Easement Program
The small forest landowner office is
created which will administer the forestry riparian easement program. An
advisory committee is established to assist the small forest landowner office
to develop policy and recommend rules to Forest Practices Board. The committee
is composed of five people representing natural resource agencies and small
forest landowners, who are appointed by the Governor upon the recommendation of
the authors of the forests and fish report.
The forestry riparian easement program is
established to acquire forestry riparian easements from small forest
landowners. AForestry riparian easements@ are easements
covering qualifying timber, which are voluntarily granted to the state. AQualifying
timber@ includes trees covered by a forest practices application
that a small landowner cannot harvest due to the rules adopted under the
forests and fish report, or trees that cannot be economically harvested after
such rules. This only includes timber located within a commercially reasonable
harvest unit according to the Forest Practices Board.
A Asmall forest landowner@ includes
entities who: a) own forest lands in fee, or have rights to a less than fee
interest for at least 50 years; b) during the last three years prior to the
application, have harvested from its own lands an average timber volume that
would qualify the owner as a small timber harvester under the timber and forest
lands property tax provisions (currently less than 2 million board feet); or c)
that certifies at the time of application that it does not intend to harvest
more than 2 million board feet in the 10 years following the application. An
entity can be deemed to be a Asmall forest landowner@ even if it
does not meet b) or c) if it can show compelling and unexpected obligations
necessitating additional logging. The small forest landowner office is
responsible for evaluating whether a landowner meets this definition, at the
time of application.
The state is not required to acquire
easements that would create unacceptable liabilities for the state. The
Department of Natural Resources may not transfer easements acquired by the
small forest landowners office, except to other state agencies.
Forestry riparian easements are effective
for 50 years from the date of the application, and may only be terminated prior
to that time if it is in the best interest of the state, or under the terms of
a termination clause in the easement. Easements must be restrictive in nature
and protect riparian functions. An entity granting a forestry riparian
easement may still be taxed under existing provisions.
The small forest landowner office is
required to determine the compensation that will be exchanged for easements.
In determining the value of an easement the small forest landowner office will
determine: 1) the volume of qualifying timber, and 2) the fair market value at
the time of application, based upon data maintained by the Department of
Revenue. Compensation will be offered at 50 percent of this value.
Compensation is provided after the harvest has been completed, leave trees have
been verified, and the easement document has been executed.
Compensation may be increased by 50
percent of the value of areas that are included in buffers or special
management zones that are determined by the small forest landowners office to
exceed a high impact threshold, where the forest practices application is
subject to high regulatory impact due to adopted rules.
The Forest Practices Board is required to
adopt rules to implement the forestry riparian easement program. The bill also
creates the small forest landowner office account and the easement purchase
account.
Potential statutory and common law
liability from falling trees which have been included in a forestry riparian
easement is limited for both the Department of Natural Resources, and the
landowner.
A landowner who sells any land which is
subject to a forestry riparian easement, must notify the buyer of the existence
and nature of the obligation. The buyer is required to sign a notice of the
obligation. If the seller fails to notify the buyer, he/she is liable for the
costs related to the obligation, including legal costs and reasonable attorney=s fees.
Riparian Open Space Program
The Forest Practices Board is required to
establish the riparian open space program through administrative rule. The
program will acquire either fee interests or conservation easements on lands
within unconfined avulsing channel migration zones. All lands acquired shall
be managed as riparian open space. An Aunconfined avulsing stream@ is a stream
that is generally fifth order or larger, that experiences abrupt shifts in
channel location, and creates a complex flood plain containing gravel bars,
disturbance species, side channels, wall-based channels, oxbow lakes, or
wetlands. An Aunconfined avulsing channel migration
zone@ is where the active channel of such a stream is prone to
move, and where movement would result in potential loss of forest adjacent to
the stream. This can include sizeable islands of timber.
Easements may be held by the Department
of Natural Resources, or transferred to a state agency, local government
agency, or nonprofit nature conservancy corporation. The rules adopted by the
Forest Practices Board shall include a definition of qualifying lands,
priorities for acquisition, and provide an opportunity to transfer with limited
warranties, and without full surveys.
These lands are presumed to have a value
equal to the median value of commercial forest land according to property tax
land value tables, or the cruised volume of timber that is 12 inches or larger
in diameter breast height times the median value of timber of the same species
in timber harvest excise tax tables.
The bill also creates the riparian open
space account in the state treasury.
Wood Debris
Generally it is unlawful to dispose of
wood debris into navigable waters, though exemptions exist relating to forest
practices. This exemption is expanded to include activities under the Forest
Practices Act, and salmon recovery.
Enforcement
The bill expands the time in which the
Department of Natural Resources may disapprove a forest practices application
or notification which is submitted by a person who has failed to comply with a
final order or decision or pay a civil penalty. This time is the greater of:
1) one year from the issuance of a notice of intent to disapprove, or 2) until
the violator pays all outstanding civil penalties and complies with all valid
notices to comply and stop work orders. Currently, the time is limited to one
year. While a notice of intent to disapprove is in effect, the violator may
not have any involvement in forest practices.
The Department of Natural Resources may
require financial assurances prior to further forest practices from any person
who has three Asignificant violations@ within a
three-year period. ASignificant violations are: a) operating
without an approved forest practices application; b) operating in breach of
terms of an application, where operation causes an actual material damage to
public resources; or c) continuation of operations in breach of a stop work
order or notice to comply. The Department of Natural Resources may deny an
application for failure to submit required financial assurances. The
Department of Natural Resources is required to adopt rules establishing a
standardized formula for determining the proper amount of financial assurances,
and an appeal process.
The Department of Natural Resources and
the Department of Ecology may obtain an administrative inspection warrant in
superior court. Such a warrant is available when: a) the Department of Natural
Resources has previously attempted an otherwise lawful inspection and access
has been actually or constructively denied, and b) the Department of Natural
Resources has reasonable cause to believe that a violation of the Forest
Practices Act or associated rules has occurred or is occurring. In addition,
the Department of Natural Resources may invite representatives of other
agencies, tribes, and interest groups to accompany the department on an
inspection performed in relation to a watershed analysis.
The Department of Natural Resources may
additionally issue a stop work order in order to prevent threats to public
safety, and a notice of failure to comply. A notice of failure to comply must
identify risks to public safety, if any have occurred. The Department of
Natural Resources may require a corrective course of action, which includes
public safety considerations. Compensation may be required for any material
damage to public safety
The Office of the Attorney General is
allowed to seek interest, costs, and attorney=s fees in
enforcing these provisions.
Forest Practices Board Composition
The director of the Department of Fish
and Wildlife is included on the Forest Practices Board. However, this
membership may be terminated after two years, unless the Legislature finds that
the Department of Natural Resources has made substantial progress toward
integrating laws, rules and programs relating to forest practices with those
relating to hydraulic projects. ASubstantial progress@ means, at a
minimum, recommendations to the Legislature regarding closer integration of the
Forest Practices Board and Washington Department of Fish and Wildlife
rulemaking authority, and closer integration of the forest practices and
hydraulic permitting processes, including the potential for a consolidated
permitting process.
Watershed Analysis
The Legislature finds that it is in the
public interest to develop a watershed analysis system that addresses the
cumulative impact of forest practices on public resources including fish,
water, and public capital improvements. The Forest Practices Board is required
to promulgate rules allowing for the development of watershed analyses.
Persons aggrieved by the approval or disapproval of a watershed analysis may
seek review from the appeals board
SEPA
Several agency decisions are exempted
from the State Environmental Policy Act procedures. These include: a) approval
of forest road maintenance and abandonment plans; b) approval of future timber
harvest schedules involving east side clear-cuts under Forest Practices Act
rules; c) acquisition of forest lands in stream channel migration zones; and d)
acquisition of conservation easements in riparian zones.
In addition, when making a threshold
determination on a watershed analysis, the department shall not make a
determination of significance unless the prescriptions themselves, compared to
prior rules or prescriptions, will cause likely significant adverse impacts on
elements of the environment other than those addressed in the watershed
analysis process.
Appropriation: None.
Fiscal Note:Requested
February 11, 1999
Effective Date:Ninety days
after adjournment of session in which bill is passed.
Rulemaking Authority:Forest
Practices Board.
