AN
ACT Relating to forest practices as they affect the recovery of salmon and
other aquatic resources; amending RCW 76.09.020, 76.13.010, 76.42.060,
76.09.330, 76.09.040, 84.33.120, 84.33.140, 84.33.145, 84.34.080, 84.34.108,
76.09.140, 76.09.150, 76.09.170, 76.09.010, 76.09.220, 76.09.030, and
90.48.420; adding new sections to chapter 75.46 RCW; adding new sections to
chapter 76.09 RCW; adding a new section to chapter 34.05 RCW; adding new
sections to chapter 43.21C RCW; adding a new section to chapter 84.33 RCW;
adding new sections to chapter 76.13 RCW; creating new sections; repealing RCW
90.28.150; and declaring an emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 101. A
new section is added to chapter 75.46 RCW and codified with the subchapter
heading of "salmon recovery planning in areas involving forest
practices" to read as follows:
(1)
The legislature finds that the forests and fish report as defined in RCW
76.09.020 was developed through extensive negotiations with the federal
agencies responsible for administering the endangered species act and the clean
water act. The legislature further finds that the forestry industry, small
landowners, tribal governments, state and federal agencies, and counties have
worked diligently for nearly two years to reach agreement on scientifically
based changes to the forest practices rules, set forth in the forests and fish
report as defined in RCW 76.09.020. The legislature further finds that if
existing forest practices rules are amended as proposed in the forests and fish
report as defined in RCW 76.09.020, the resulting changes in forest practices
(a) will lead to: (i) Salmon habitat that meets riparian functions vital to
the long-term recovery of salmon on more than sixty thousand miles of streams
in this state; (ii) identification of forest roads contributing to habitat
degradation and corrective action to remedy those problems to protect salmon
habitat; (iii) increased protection of steep and unstable slopes; and (iv) the
implementation of scientifically based adaptive management and monitoring
processes for evaluating the impacts of forest practices on aquatic resources,
as defined in RCW 76.09.020, and a process for amending the forest practices
rules to incorporate new information as it becomes available; (b) will lead to
the protection of aquatic resources to the maximum extent practicable
consistent with maintaining commercial forest management as an economically
viable use of lands suitable for that purpose; and (c) will provide a
regulatory climate and structure more likely to keep landowners from converting
forest lands to other uses that would be less desirable for salmon recovery.
(2)
The legislature further finds that the changes in laws and rules contemplated
by chapter . . ., Laws of 1999 1st sp. sess. (this act), taken as a
whole, constitute a comprehensive and coordinated program to provide
substantial and sufficient contributions to salmon recovery and water quality
enhancement in areas impacted by forest practices and are intended to fully
satisfy the requirements of the endangered species act (16 U.S.C. Sec. 1531 et
seq.) with respect to incidental take of salmon and other aquatic resources and
the clean water act (33 U.S.C. Sec. 1251 et seq.) with respect to nonpoint
source pollution attributable to forest practices.
(3)
The legislature finds that coordination is needed between the laws relating to
forestry in chapter 76.09 RCW and the state salmon recovery strategy being
developed under this chapter. The coordination should ensure that nonfederal
forest lands are managed in ways that make appropriate contributions to the
recovery of salmonid fish, water quality, and related environmental amenities
while encouraging continued investments in those lands for commercial forestry
purposes. Specifically, the legislature finds that forest practices rules
relating to water quality, salmon, certain other species of fish, certain
species of stream-associated amphibians, and their respective habitats should
be coordinated with the rules and policies relating to other land uses through
the state-wide salmon recovery planning process. The legislature further finds
that this subchapter is but one part of a comprehensive salmon strategy as
required in this chapter, and this investment in salmon habitat will be of
little value if a comprehensive state plan is not completed and fully
implemented.
(4)
The legislature recognizes that the adoption of forest practices rules
consistent with the forests and fish report as defined in RCW 76.09.020 will
impose substantial financial burdens on forest landowners which, if not
partially offset through other changes in the laws and rules governing
forestry, could lead to significantly reduced silvicultural investments on
nonfederal lands, deterioration in the quality, condition, and amounts of
forests on those lands, and long-term adverse effects on fish and wildlife
habitat and other environmental amenities associated with well managed
forests. Moreover, as the benefits of the proposed revisions to the forest
practices rules will benefit the general public, chapter . . ., Laws
of 1999 1st sp. sess. (this act) suggests that some of these costs be shared
with the general public.
(5)
As an integral part of implementing the salmon recovery strategy, chapter
. . ., Laws of 1999 1st sp. sess. (this act) (a) provides direction
to the forest practices board, the department of natural resources, and the
department of ecology with respect to the adoption, implementation, and
enforcement of rules relating to forest practices and the protection of aquatic
resources; (b) provides additional enforcement tools to the department of
natural resources to enforce the forest practices rules; (c) anticipates the
need for adequate and consistent funding for the various programmatic elements
necessary to fully implement the strategy over time and derive the long-term
benefits; (d) provides for the acquisition by the state of forest lands within
certain stream channel migration zones where timber harvest will not be
allowed; (e) provides for small landowners to have costs shared for a portion
of any extraordinary economic losses attributable to the revisions to the
forest practices rules required by chapter . . ., Laws of 1999 1st
sp. sess. (this act); and (f) amends other existing laws to aid in the
implementation of the recommendations set forth in the forests and fish report
as defined in RCW 76.09.020.
PART
II
RULE
MAKING
NEW
SECTION. Sec. 201. A
new section is added to chapter 76.09 RCW to read as follows:
(1)
The legislature finds that the declines of fish stocks throughout much of the
state requires immediate action to be taken to help restore these fish runs
where possible. The legislature also recognizes that federal and state
agencies, tribes, county representatives, and private timberland owners have
spent considerable effort and time to develop the forests and fish report.
Given the agreement of the parties, the legislature believes that the immediate
adoption of emergency rules is appropriate in this particular instance. These
rules can implement many provisions of the forests and fish report to protect
the economic well-being of the state, and to minimize the risk to the state and
landowners to legal challenges. This authority is not designed to set any
precedents for the forest practices board in future rule making or set any
precedents for other rule-making bodies of the state.
(2)
The forest practices board is authorized to adopt emergency rules amending the
forest practices rules with respect to the protection of aquatic resources, in
accordance with RCW 34.05.350, except: (a) That the rules adopted under this
section may remain in effect until permanent rules are adopted, or until June
30, 2001, whichever is sooner; (b) notice of the proposed rules must be
published in the Washington State Register as provided in RCW 34.05.320; (c) at
least one public hearing must be conducted with an opportunity to provide oral
and written comments; and (d) a rule-making file must be maintained as required
by RCW 34.05.370. In adopting the emergency rules, the board is not required
to prepare a small business economic impact statement under chapter 19.85 RCW,
prepare a statement indicating whether the rules constitute a significant
legislative rule under RCW 34.05.328, prepare a significant legislative rule
analysis under RCW 34.05.328, or follow the procedural requirements of the
state environmental policy act, chapter 43.21C RCW. The forest practices board
may only adopt recommendations contained in the forests and fish report as
emergency rules under this section.
NEW
SECTION. Sec. 202. A
new section is added to chapter 34.05 RCW to read as follows:
Emergency
rules adopted by the forest practices board pertaining to forest practices and
the protection of aquatic resources are subject to this chapter to the extent
provided in section 201 of this act.
NEW
SECTION. Sec. 203. A
new section is added to chapter 43.21C RCW to read as follows:
The
duration and process for adopting emergency rules by the forest practices board
pertaining to forest practices and the protection of aquatic resources as
provided in section 201 of this act are exempt from the procedural requirements
of this chapter.
NEW
SECTION. Sec. 204. A
new section is added to chapter 76.09 RCW to read as follows:
(1)
The legislature finds that the process that produced the forests and fish
report was instigated by the forest practices board, the report is the product
of considerable negotiations between several diverse interest groups, and the
report has the support of key federal agencies. When adopting permanent rules
under this section, the forest practices board is strongly encouraged to follow
the recommendations of the forests and fish report, but may include other
alternatives for protection of aquatic resources. If the forest practices
board chooses to adopt rules under this section that are not consistent with
the recommendations contained in the forests and fish report, the board must
notify the appropriate legislative committees of the proposed deviations, the
reasons for the proposed deviations, and whether the parties to the forests and
fish report still support the agreement. The board shall defer final adoption
of such rules for sixty days of the legislative session to allow for the
opportunity for additional public involvement and legislative oversight.
(2)
The forest practices board shall follow the regular rules adoption process contained
in the administrative procedure act, chapter 34.05 RCW, when adopting permanent
rules pertaining to forest practices and the protection of aquatic resources
except as limited by subsection (1) of this section. The permanent rules must
accomplish the policies stated in RCW 76.09.010 without jeopardizing the
economic viability of the forest products industry.
(3)
The rules adopted under this section should be as specific as reasonably
possible while also allowing an applicant to propose alternate plans in
response to site-specific physical features. Alternate plans should provide
protection to public resources at least equal in overall effectiveness by
alternate means.
(4)
Rule making under subsection (2) of this section shall be completed by June 30,
2001.
(5)
The board should consider coordinating any environmental review process under
chapter 43.21C RCW relating to the adoption of rules under subsection (2) of
this section with any review of a related proposal under the national
environmental policy act (42 U.S.C. Sec. 4321, et seq.).
(6)
After the board has adopted permanent rules under subsection (2) of this
section, changes to those rules and any new rules covering aquatic resources
may be adopted by the board but only if the changes or new rules are consistent
with recommendations resulting from the scientifically based adaptive
management process established by a rule of the board. Any new rules or
changes under this subsection need not be based upon the recommendations of the
adaptive management process if: (a) The board is required to adopt or modify
rules by the final order of any court having jurisdiction thereof; or (b)
future state legislation directs the board to adopt or modify the rules.
(7)
In adopting permanent rules, the board shall incorporate the scientific-based
adaptive management process described in the forests and fish report which will
be used to determine the effectiveness of the new forest practices rules in
aiding the state's salmon recovery effort. The purpose of an adaptive
management process is to make adjustments as quickly as possible to forest
practices that are not achieving the resource objectives. The adaptive
management process shall incorporate the best available science and
information, include protocols and standards, regular monitoring, a scientific
and peer review process, and provide recommendations to the board on proposed
changes to forest practices rules to meet timber industry viability and salmon
recovery.
NEW
SECTION. Sec. 205. A
new section is added to chapter 76.09 RCW to read as follows:
Prior
to the adoption of permanent rules as required by chapter . . ., Laws
of 1999 1st sp. sess. (this act) and no later than January 1, 2000, the board
shall report to the appropriate legislative committees regarding the substance
of emergency rules that have been adopted under chapter . . ., Laws
of 1999 1st sp. sess. (this act). In addition, the report shall include
information on changes made to the forests and fish report after April 29,
1999, and an update on the status of the adoption of permanent rules, including
the anticipated substance of the rules and the anticipated date of final
adoption. The board shall additionally provide a report to the appropriate
legislative committees by January 1, 2001.
On
January 1, 2006, the board shall provide a summary to the appropriate
legislative committees regarding modifications made to the forests and fish
report made after January 1, 2000, and to the permanent rules according to the
adaptive management process as set forth in the forests and fish report.
PART
III
DEFINITIONS
Sec.
301. RCW
76.09.020 and 1974 ex.s. c 137 s 2 are each amended to read as follows:
For
purposes of this chapter:
(1)
"Adaptive management" means reliance on scientific methods to test
the results of actions taken so that the management and related policy can be
changed promptly and appropriately.
(2)
"Appeals board" ((shall)) means the forest practices
appeals board created by RCW 76.09.210.
(((2)))
(3) "Aquatic resources" includes water quality, salmon, other
species of the vertebrate classes Cephalaspidomorphi and Osteichthyes
identified in the forests and fish report, 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.
(4)
"Commissioner" ((shall)) means the commissioner of
public lands.
(((3)))
(5) "Contiguous" ((shall)) means land adjoining
or touching by common corner or otherwise. Land having common ownership
divided by a road or other right of way shall be considered contiguous.
(((4)))
(6) "Conversion to a use other than commercial timber
operation" ((shall)) means a bona fide conversion to an
active use which is incompatible with timber growing and as may be defined by
forest practices ((regulations)) rules.
(((5)))
(7) "Department" ((shall)) means the department
of natural resources.
(((6)))
(8) "Forest land" ((shall)) 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.
(((7)))
(9) "Forest landowner" ((shall)) means 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 landowner" 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.
(((8)))
(10) "Forest practice" ((shall)) means any
activity conducted on or directly pertaining to forest land and relating to
growing, harvesting, or processing timber, including but not limited to:
(a)
Road and trail construction;
(b)
Harvesting, final and intermediate;
(c)
Precommercial thinning;
(d)
Reforestation;
(e)
Fertilization;
(f)
Prevention and suppression of diseases and insects;
(g)
Salvage of trees; and
(h)
Brush control.
"Forest
practice" shall not include preparatory work such as tree marking,
surveying and road flagging, and removal or harvesting 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.
(((9)))
(11) "Forest practices ((regulations" shall)) rules"
means any rules ((promulgated)) adopted pursuant to RCW
76.09.040.
(((10)))
(12) "Forests and fish report" means the forests and fish report
to the board dated April 29, 1999.
(13)
"Application" ((shall)) means the application required
pursuant to RCW 76.09.050.
(((11)))
(14) "Operator" ((shall)) means any person
engaging in forest practices except an employee with wages as his or her
sole compensation.
(((12)))
(15) "Person" ((shall)) means any individual,
partnership, private, public, or municipal corporation, county, the department
or other state or local governmental entity, or association of individuals of
whatever nature.
(((13)))
(16) "Public resources" ((shall)) means water,
fish and wildlife, and in addition shall mean capital improvements of the state
or its political subdivisions.
(((14)))
(17) "Timber" ((shall)) means forest trees,
standing or down, of a commercial species, including Christmas trees.
(((15)))
(18) "Timber owner" ((shall)) means any person
having all or any part of the legal interest in timber. Where such timber is
subject to a contract of sale, "timber owner" shall mean the contract
purchaser.
(((16)))
(19) "Board" ((shall)) means the forest
practices board created in RCW 76.09.030.
(20)
"Unconfined avulsing channel migration zone" means the area within
which the active channel of an unconfined avulsing stream is prone to move and
where the movement would result in a potential near-term loss of riparian
forest adjacent to the stream. Sizeable islands with productive timber may
exist within the zone.
(21)
"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.
PART
IV
TIMBER
EXCISE TAX CREDIT
NEW
SECTION. Sec. 401. A
new section is added to chapter 84.33 RCW to read as follows:
(1)
A taxpayer is allowed a credit against the tax imposed under RCW 84.33.041 for
timber harvested under a forest practices notification filed or application
approved under RCW 76.09.050 and subject to enhanced aquatic resources
requirements.
(2)(a)
For a person other than a small harvester who elects to calculate tax under RCW
84.33.074, the credit is equal to the stumpage value of timber harvested for
sale or for commercial or industrial use multiplied by eight-tenths of one
percent.
(b)
For a small harvester who elects to calculate tax under RCW 84.33.074, the
credit is equal to sixteen percent of the tax imposed under this chapter.
(c)
The amount of credit claimed by a taxpayer under this section shall be reduced
by the amount of any compensation received from the federal government for
reduced timber harvest due to enhanced aquatic resource requirements. If the
amount of compensation from the federal government exceeds the amount of credit
available to a taxpayer in any reporting period, the excess shall be carried
forward and applied against credits in future reporting periods. This
subsection does not apply to small harvesters as defined in RCW 84.33.073.
(d)
Refunds may not be given in place of credits. Credit may not be claimed in
excess of tax owed. The department of revenue shall disallow any credits, used
or unused, upon written notification from the department of natural resources
of a final decision that timber for which credit was claimed was not harvested
under a forest practices notification filed or application approved under RCW
76.09.050 and subject to enhanced aquatic resources requirements.
(3)
As used in this section, a forest practice notification or application is
subject to enhanced aquatic resource requirements if it includes, in whole or in
part, riparian area, wetland, or steep or unstable slope from which the
operator is limited, by rule adopted under sections 201 through 204 of this
act, or any federally approved habitat conservation plan or department of
natural resources approved watershed analysis, from harvesting timber, or if a
road is included within or adjacent to the area covered by such notification or
application and the road is covered by a road maintenance plan approved by the
department of natural resources under rules adopted under chapter 76.09 RCW,
the forest practices act, or a federally approved habitat conservation plan.
(4)
For forest practices notification or applications submitted after January 1,
2000, the department of natural resources shall indicate whether the notification
or application is subject to enhanced aquatic resource requirements and, unless
notified of a contrary determination by the forest practices appeals board, the
department of revenue shall use such indication in determining the credit to be
allowed against the tax assessed under RCW 84.33.041. The department of
natural resources shall develop revisions to the form of the forest practices
notifications and applications to provide a space for the applicant to indicate
and the department of natural resources to confirm or not confirm, whether the
notification or application is subject to enhanced aquatic resource
requirements. For forest practices notifications or applications submitted
before January 1, 2000, the applicant may submit the approved notification or
application to the department of natural resources for confirmation that the
notification or application is subject to enhanced aquatic resource
requirements. Upon any such submission, the department of natural resources
will within thirty days confirm or deny that the notification or application is
subject to enhanced aquatic resource requirements and will forward separate
evidence of each confirmation to the department of revenue. Unless notified of
a contrary ruling by the forest practices appeals board, the department of
revenue shall use the separate confirmations in determining the credit to be
allowed against the tax assessed under RCW 84.33.041.
(5)
A refusal by the department of natural resources to confirm that a notification
or application is subject to enhanced aquatic resources requirements may be
appealed to the forest practices appeals board under RCW 76.09.220.
(6)
A person receiving approval of credit must keep records necessary for the
department of revenue to verify eligibility under this section.
NEW
SECTION. Sec. 402. The
department of revenue and the department of natural resources shall conduct a
joint study of the tax credits under section 401 of this act. The study shall
examine the relationship between the amount of tax credit received by each
taxpayer and the extent that the taxpayer's timber harvests have been limited
as a result of complying with enhanced aquatic resource requirements. The
departments shall submit the study to the legislature by November 1, 2002.
PART
V
SMALL
FOREST LANDOWNERS
NEW
SECTION. Sec. 501. A
new section is added to chapter 76.13 RCW to read as follows:
(1)
The legislature finds that increasing regulatory requirements continue to
diminish the economic viability of small forest landowners. The concerns set
forth in section 101 of this act about the importance of sustaining forestry as
a viable land use are particularly applicable to small landowners because of
the location of their holdings, the expected complexity of the regulatory
requirements, and the need for significant technical expertise not readily
available to small landowners. The further reduction in harvestable timber
owned by small forest landowners as a result of the rules to be adopted under
section 201 of this act will further erode small landowners' economic viability
and willingness or ability to keep the lands in forestry use and, therefore,
reduce the amount of habitat available for salmon recovery and conservation of
other aquatic resources, as defined in RCW 76.09.020.
(2)
The legislature finds that the concerns identified in subsection (1) of this
section should be addressed by establishing within the department of natural
resources a small forest landowner office that shall be a resource and focal
point for small forest landowner concerns and policies. The legislature
further finds that a forestry riparian easement program shall be established to
acquire easements from small landowners along riparian and other areas of value
to the state for protection of aquatic resources. The legislature further
finds that small forest landowners should have the option of alternate
management plans or alternate harvest restrictions on smaller harvest units
that may have a relatively low impact on aquatic resources. The small forest
landowner office should be responsible for assisting small landowners in the
development and implementation of these plans or restrictions.
Sec.
502. RCW
76.13.010 and 1991 c 27 s 3 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
((throughout this chapter)) to RCW 76.13.005, 76.13.007, 76.13.020,
and 76.13.030.
(1)
"Department" means the department of natural resources.
(2)
"Landowner" means an individual, partnership, private, public or
municipal corporation, Indian tribe, state agency, county, or local government
entity, educational institution, or association of individuals of whatever
nature that own nonindustrial forests and woodlands.
(3)
"Nonindustrial forests and woodlands" are those suburban acreages and
rural lands supporting or capable of supporting trees and other flora and fauna
associated with a forest ecosystem, comprised of total individual land
ownerships of less than five thousand acres and not directly associated with
wood processing or handling facilities.
(4)
"Stewardship" means managing by caring for, promoting, protecting,
renewing, or reestablishing or both, forests and associated resources for the
benefit of the landowner, the natural resources and the citizens of Washington
state, in accordance with each landowner's objectives, best management
practices, and legal requirements.
(5)
"Cooperating organization" means federal, state, and local agencies,
colleges and universities, landowner assistance organizations, consultants,
forest resource-related industries, and environmental organizations which
promote and maintain programs designed to provide information and technical
assistance services to nonindustrial forest and woodland owners.
NEW
SECTION. Sec. 503. A
new section is added to chapter 76.13 RCW to read as follows:
(1)
The department of natural resources shall establish and maintain a small forest
landowner office. The small forest landowner office shall be a resource and
focal point for small forest landowner concerns and policies, and shall have
significant expertise regarding the management of small forest holdings,
governmental programs applicable to such holdings, and the forestry riparian
easement program.
(2)
The small forest landowner office shall administer the provisions of the
forestry riparian easement program created under section 504 of this act. With
respect to that program, the office shall have the authority to contract with
private consultants that the office finds qualified to perform timber cruises
of forestry riparian easements.
(3)
The small forest landowner office shall assist in the development of small
landowner options through alternate management plans or alternate harvest
restrictions appropriate to small landowners. The small forest landowner
office shall develop criteria to be adopted by the forest practices board in a
manual for alternate management plans or alternate harvest restrictions. These
alternate plans or alternate harvest restrictions shall meet riparian functions
while requiring less costly regulatory prescriptions. At the landowner's
option, alternate plans or alternate harvest restrictions may be used to
further meet riparian functions.
The
small landowner office shall evaluate the cumulative impact of such alternate
management plans or alternate harvest restrictions on essential riparian
functions at the subbasin or watershed level. The small forest landowner office
shall adjust future alternate management plans or alternate harvest
restrictions in a manner that will minimize the negative impacts on essential
riparian functions within a subbasin or watershed.
(4)
An advisory committee is established to assist the small forest landowner
office in developing policy and recommending rules to the forest practices
board. The advisory committee shall consist of seven members, including a
representative from the department of ecology, the department of fish and
wildlife, and a tribal representative. Four additional committee members shall
be small forest landowners who shall be appointed by the commissioner of public
lands from a list of candidates submitted by the board of directors of the
Washington farm forestry association or its successor organization. The
association shall submit more than one candidate for each position. Appointees
shall serve for a term of four years. The small forest landowner office shall
review draft rules or rule concepts with the committee prior to recommending
such rules to the forest practices board. The office shall reimburse
nongovernmental committee members for reasonable expenses associated with
attending committee meetings as provided in RCW 43.03.050 and 43.03.060.
(5)
By December 1, 2000, the small forest landowner office shall provide a report
to the board and the legislature containing:
(a)
Estimates of the amounts of nonindustrial forests and woodlands in holdings of
twenty acres or less, twenty-one to one hundred acres, one hundred to one
thousand acres, and one thousand to five thousand acres, in western Washington
and eastern Washington, and the number of persons having total nonindustrial
forest and woodland holdings in those size ranges;
(b)
Estimates of the number of parcels of nonindustrial forests and woodlands held
in contiguous ownerships of twenty acres or less, and the percentages of those
parcels containing improvements used: (i) As primary residences for half or
more of most years; (ii) as vacation homes or other temporary residences for
less than half of most years; and (iii) for other uses;
(c)
The watershed administrative units in which significant portions of the
riparian areas or total land area are nonindustrial forests and woodlands;
(d)
Estimates of the number of forest practices applications and notifications
filed per year for forest road construction, silvicultural activities to
enhance timber growth, timber harvest not associated with conversion to
nonforest land uses, with estimates of the number of acres of nonindustrial
forests and woodlands on which forest practices are conducted under those
applications and notifications; and
(e)
Recommendations on ways the board and the legislature could provide more
effective incentives to encourage continued management of nonindustrial forests
and woodlands for forestry uses in ways that better protect salmon, other fish
and wildlife, water quality, and other environmental values.
(6)
By December 1, 2002, and every four years thereafter, the small forest landowner
office shall provide to the board and the legislature an update of the report
described in subsection (5) of this section, containing more recent information
and describing:
(a)
Trends in the items estimated under subsection (5)(a) through (d) of this
section;
(b)
Whether, how, and to what extent the forest practices act and rules contributed
to those trends; and
(c)
Whether, how, and to what extent: (i) The board and legislature implemented
recommendations made in the previous report; and (ii) implementation of or
failure to implement those recommendations affected those trends.
NEW
SECTION. Sec. 504. A
new section is added to chapter 76.13 RCW to read as follows:
(1)
The legislature finds that the state should acquire easements along riparian
and other sensitive aquatic areas from small forest landowners willing to sell
or donate such easements to the state provided that the state will not be
required to acquire such easements if they are subject to unacceptable liabilities.
The legislature therefore establishes a forestry riparian easement program.
(2)
The definitions in this subsection apply throughout this section and sections
501 and 503 of this act unless the context clearly requires otherwise.
(a)
"Forestry riparian easement" means an easement covering qualifying
timber granted voluntarily to the state by a small forest landowner.
(b)
"Qualifying timber" means those trees covered by a forest practices
application that the small forest landowner is required to leave unharvested
under the rules adopted under sections 201 and 204 of this act or that is made
uneconomic to harvest by those rules, and for which the small landowner is
willing to grant the state a forestry riparian easement. "Qualifying
timber" is timber within or bordering a commercially reasonable harvest
unit as determined under rules adopted by the forest practices board.
(c)
"Small forest landowner" means a landowner meeting all of the
following characteristics: (i) A forest landowner as defined in RCW 76.09.020
whose interest in the land and timber is in fee or who has rights to the timber
to be included in the forestry riparian easement that extend at least fifty
years from the date the forest practices application associated with the
easement is submitted; (ii) an entity that has harvested from its own lands in
this state during the three years prior to the year of application an average
timber volume that would qualify the owner as a small timber harvester under
RCW 84.33.073(1); and (iii) an entity that certifies at the time of application
that it does not expect to harvest from its own lands more than the volume
allowed by RCW 84.33.073(1) during the ten years following application. If a
landowner's prior three-year average harvest exceeds the limit of RCW
84.33.073(1), or the landowner expects to exceed this limit during the ten
years following application, and that landowner establishes to the department
of natural resources' reasonable satisfaction that the harvest limits were or
will be exceeded to raise funds to pay estate taxes or equally compelling and
unexpected obligations such as court-ordered judgments or extraordinary medical
expenses, the landowner shall be deemed to be a small forest landowner.
For
purposes of determining whether a person qualifies as a small forest landowner,
the small forest landowner office, created in section 503 of this act, shall
evaluate the landowner under this definition as of the date that the forest
practices application is submitted with which the forestry riparian easement is
associated. A small forest landowner can include an individual, partnership,
corporate, or other nongovernmental legal entity. If a landowner grants timber
rights to another entity for less than five years, the landowner may still
qualify as a small forest landowner under this section.
(d)
"Completion of harvest" means that the trees have been harvested from
an area and that further entry into that area by mechanized logging or slash
treating equipment is not expected.
(3)
The department of natural resources is authorized and directed to accept and
hold in the name of the state of Washington forestry riparian easements granted
by small forest landowners covering qualifying timber and to pay compensation
to such landowners in accordance with subsections (6) and (7) of this section.
The department of natural resources may not transfer the easements to any
entity other than another state agency.
(4)
Forestry riparian easements shall be effective for fifty years from the date
the forest practices application associated with the qualifying timber is
submitted to the department of natural resources, unless the easement is
terminated earlier by the department of natural resources voluntarily, based on
a determination that termination is in the best interest of the state, or under
the terms of a termination clause in the easement.
(5)
Forestry riparian easements shall be restrictive only, and shall preserve all
lawful uses of the easement premises by the landowner that are consistent with
the terms of the easement and the requirement to protect riparian functions
during the term of the easement, subject to the restriction that the leave
trees required by the rules to be left on the easement premises may not be cut
during the term of the easement. No right of public access to or across, or
any public use of the easement premises is created by this statute or by the
easement. Forestry riparian easements shall not be deemed to trigger the
compensating tax of or otherwise disqualify land from being taxed under chapter
84.33 or 84.34 RCW.
(6)
Upon application of a small forest landowner for a riparian easement that is
associated with a forest practices application and the landowner's marking of
the qualifying timber on the qualifying lands, the small forest landowner
office shall determine the compensation to be offered to the small landowner as
provided for in this section. The legislature recognizes that there is not
readily available market transaction evidence of value for easements of this
nature, and thus establishes the following methodology to ascertain the value
for forestry riparian easements. Values so determined shall not be considered
competent evidence of value for any other purpose.
The
small forest landowner office shall establish the volume of the qualifying
timber. Based on that volume and using data obtained or maintained by the
department of revenue under RCW 84.33.074 and 84.33.091, the small forest
landowner office shall attempt to determine the fair market value of the
qualifying timber as of the date the forest practices application associated
with the qualifying timber was submitted. If, under the forest practices rules
adopted under chapter. . ., Laws of 1999 1st sp. sess. (this act), some
qualifying timber may be removed prior to the expiration of the fifty-year term
of the easement, the small forest landowner office shall apply a reduced
compensation factor to ascertain the value of those trees based on the
proportional economic value, considering income and growth, lost to the
landowner.
(7)
Except as provided in subsection (8) of this section, the small forest
landowner office shall, subject to available funding, offer compensation to the
small forest landowner in the amount of fifty percent of the value determined
in subsection (6) of this section. If the landowner accepts the offer, the
department of natural resources shall pay the compensation promptly upon (a)
completion of harvest in the area covered by the forestry riparian easement;
(b) verification that there has been compliance with the rules requiring leave
trees in the easement area; and (c) execution and delivery of the easement to
the department of natural resources. Upon donation or payment of compensation,
the department of natural resources may record the easement.
(8)
For approved forest practice applications where the regulatory impact is
greater than the average percentage impact for all small landowners as
determined by the department of natural resources analysis under the regulatory
fairness act, chapter 19.85 RCW, the compensation offered will be increased to
one hundred percent for that portion of the regulatory impact that is in excess
of the average. Regulatory impact includes trees left in buffers, special
management zones, and those rendered uneconomic to harvest by these rules. A
separate average or high impact regulatory threshold shall be established for
western and eastern Washington. Criteria for these measurements and payments
shall be established by the small forest landowner office.
(9)
The forest practices board shall adopt rules under the administrative procedure
act, chapter 34.05 RCW, to implement the forestry riparian easement program,
including the following:
(a)
A standard version or versions of all documents necessary or advisable to
create the forestry riparian easements as provided for in this section;
(b)
Standards for descriptions of the easement premises with a degree of precision
that is reasonable in relation to the values involved;
(c)
Methods and standards for cruises and valuation of forestry riparian easements
for purposes of establishing the compensation. The department of natural
resources shall perform the timber cruises of forestry riparian easements
required under this chapter and chapter 76.09 RCW. Any rules concerning the
methods and standards for valuations of forestry riparian easements shall apply
only to the department of natural resources, small forest landowners, and the
small forest landowner office;
(d)
A method to determine that a forest practice application involves a
commercially reasonable harvest;
(e)
A method to address blowdown of qualified timber falling outside the easement
premises;
(f)
A formula for sharing of proceeds in relation to the acquisition of qualified
timber covered by an easement through the exercise or threats of eminent domain
by a federal or state agency with eminent domain authority, based on the
present value of the department of natural resources' and the landowner's
relative interests in the qualified timber;
(g)
High impact regulatory thresholds;
(h)
A method to determine timber that is qualifying timber because it is rendered
uneconomic to harvest by the rules adopted under sections 201 and 204 of this
act; and
(i)
A method for internal department of natural resources review of small landowner
office compensation decisions under subsection (7) of this section.
NEW
SECTION. Sec. 505. A
new section is added to chapter 76.13 RCW to read as follows:
On
parcels of twenty contiguous acres or less, landowners with a total parcel
ownership of less than eighty acres shall not be required to leave riparian
buffers adjacent to streams according to forest practices rules adopted under
the forests and fish report as defined in RCW 76.09.020. These landowners
shall be subject to the permanent forest practices rules in effect as of
January 1, 1999, but may additionally be required to leave timber adjacent to
streams that is equivalent to no greater than fifteen percent of a volume of
timber contained in a stand of well managed fifty-year old commercial timber
covering the harvest area. The additional fifteen percent leave tree level
shall be computed as a rotating stand volume and shall be regulated through
flexible forest practices as the stream buffer is managed over time to meet
riparian functions.
On
parcels of twenty contiguous acres or less the small forest landowner office
shall work with landowners with a total parcel ownership of less than eighty
acres to develop alternative management plans for riparian buffers. Such
alternative plans shall provide for the removal of leave trees as other new
trees grow in order to ensure the most effective protection of critical riparian
function. The office may recommend reasonable modifications in alternative
management plans of such landowners to further reduce risks to public resources
and endangered species so long as the anticipated operating costs are not
unreasonably increased and the landowner is not required to leave a greater
volume than the threshold level. To qualify for the provisions of this
section, parcels must be twenty acres or less in contiguous ownership, and
owners cannot have ownership interests in a total of more than eighty acres of
forest lands within the state.
PART
VI
LARGE
WOODY DEBRIS
Sec.
601. RCW
76.42.060 and 1973 c 136 s 7 are each amended to read as follows:
It
shall be unlawful to dispose of wood debris by depositing such material into
any of the navigable waters of this state, except as authorized by law
including any discharge or deposit allowed to be made under and in compliance
with chapter 90.48 RCW and any rules ((or regulations)) duly ((promulgated))
adopted thereunder or any deposit allowed to be made under and in
compliance with chapter 76.09 or 75.46 RCW and any rules duly adopted under
those chapters. Violation of this section shall be a misdemeanor.
Sec.
602. RCW
76.09.330 and 1992 c 52 s 5 are each amended to read as follows:
The
legislature hereby finds and declares that riparian ecosystems on forest lands
in addition to containing valuable timber resources, provide benefits for
wildlife, fish, and water quality. The legislature further finds and
declares that leaving riparian areas unharvested and leaving snags and green
trees for large woody debris recruitment for streams and rivers provides public
benefits including but not limited to benefits for threatened and endangered
salmonids, other fish, amphibians, wildlife, and water quality enhancement.
The legislature further finds and declares that leaving upland areas
unharvested for wildlife and leaving snags and green trees for future snag
recruitment provides benefits for wildlife. Forest landowners may be required
to leave trees standing in riparian and upland areas to benefit public
resources. It is recognized that these trees may blow down or fall into
streams and that organic debris may be allowed to remain in streams. This is
beneficial to riparian dependent and other wildlife species. Further, it is
recognized that trees may blow down, fall onto, or otherwise cause damage or
injury to public improvements, private property, and persons. Notwithstanding
any statutory provision, rule, or common law doctrine to the contrary, the
landowner, the department, and the state of Washington shall not be held
liable for any injury or damages resulting from these actions, including but
not limited to wildfire, erosion, flooding, personal injury, property
damage, damage to public improvements, and other injury or damages of
any kind or character resulting from the trees being left.
PART
VII
RIPARIAN
OPEN SPACE
Sec.
701. RCW
76.09.040 and 1997 c 173 s 1 are each amended to read as follows:
(1)
Where necessary to accomplish the purposes and policies stated in RCW
76.09.010, and to implement the provisions of this chapter, the board shall ((promulgate))
adopt forest practices ((regulations)) rules pursuant to
chapter 34.05 RCW and in accordance with the procedures enumerated in this
section that:
(a)
Establish minimum standards for forest practices;
(b)
Provide procedures for the voluntary development of resource management plans
which may be adopted as an alternative to the minimum standards in (a) of this
subsection if the plan is consistent with the purposes and policies stated in
RCW 76.09.010 and the plan meets or exceeds the objectives of the minimum
standards;
(c)
Set forth necessary administrative provisions; ((and))
(d)
Establish procedures for the collection and administration of forest practice
fees as set forth by this chapter; and
(e)
Allow for the development of watershed analyses.
Forest
practices ((regulations)) rules pertaining to water quality
protection shall be ((promulgated individually)) adopted by the
board ((and by the department of ecology)) after ((they have reached))
reaching agreement with the director of the department of ecology or
the director's designee on the board with respect thereto. All other
forest practices ((regulations)) rules shall be ((promulgated))
adopted by the board.
Forest
practices ((regulations)) rules shall be administered and
enforced by either the department or the local governmental entity as provided
in this chapter. Such ((regulations)) rules shall be ((promulgated))
adopted and administered so as to give consideration to all purposes and
policies set forth in RCW 76.09.010.
(2)
The board shall prepare proposed forest practices ((regulations)) rules.
In addition to any forest practices ((regulations)) rules
relating to water quality protection proposed by the board, the department of
ecology ((shall prepare)) may submit to the board proposed forest
practices ((regulations)) rules relating to water quality
protection.
Prior
to initiating the rule making process, the proposed ((regulations)) rules
shall be submitted for review and comments to the department of fish and
wildlife and to the counties of the state. After receipt of the proposed
forest practices ((regulations)) rules, the department of fish
and wildlife and the counties of the state shall have thirty days in which to
review and submit comments to the board, and to the department of ecology with
respect to its proposed ((regulations)) rules relating to water
quality protection. After the expiration of such thirty day period the board
and the department of ecology shall jointly hold one or more hearings on the
proposed ((regulations)) rules pursuant to chapter 34.05 RCW. At
such hearing(s) any county may propose specific forest practices ((regulations))
rules relating to problems existing within such county. The board may
adopt and the department of ecology may ((adopt)) approve
such proposals if they find the proposals are consistent with the purposes and
policies of this chapter.
(3)
The board shall establish by rule a riparian open space program that includes
acquisition of a fee interest in, or at the landowner's option, a conservation
easement on lands within unconfined avulsing channel migration zones. Once
acquired, these lands may be held and managed by the department, transferred to
another state agency, transferred to an appropriate local government agency, or
transferred to a private nonprofit nature conservation corporation, as defined
in RCW 64.04.130, in fee or transfer of management obligation. The board shall
adopt rules governing the acquisition by the state or donation to the state of
such interest in lands including the right of refusal if the lands are subject
to unacceptable liabilities. The rules shall include definitions of qualifying
lands, priorities for acquisition, and provide for the opportunity to transfer
such lands with limited warranties and with a description of boundaries that
does not require full surveys where the cost of securing the surveys would be
unreasonable in relation to the value of the lands conveyed. The rules shall
provide for the management of the lands for ecological protection or fisheries
enhancement. Because there are few, if any, comparable sales of forest land
within unconfined avulsing channel migration zones, separate from the other
lands or assets, these lands are likely to be extraordinarily difficult to appraise
and the cost of a conventional appraisal often would be unreasonable in
relation to the value of the land involved. Therefore, for the purposes of
voluntary sales under this section, the legislature declares that these lands
are presumed to have a value equal to: (a) The acreage in the sale multiplied
by the average value of commercial forest land in the region under the land
value tables used for property tax purposes under RCW 84.33.120; plus (b) the
cruised volume of any timber located within the channel migration multiplied by
the appropriate quality code stumpage value for timber of the same species
shown on the appropriate table used for timber harvest excise tax purposes
under RCW 84.33.091. For purposes of this section, there shall be an eastside
region and a westside region as defined in the forests and fish report as
defined in RCW 76.09.020.
(4)
Subject to appropriations sufficient to cover the cost of such an acquisition
program and the related costs of administering the program, the department is
directed to purchase a fee interest or, at the owner's option, a conservation
easement in land that an owner tenders for purchase; provided that such lands
have been taxed as forest lands and are located within an unconfined avulsing
channel migration zone. Lands acquired under this section shall become
riparian open space. These acquisitions shall not be deemed to trigger the
compensating tax of chapters 84.33 and 84.34 RCW.
(5)
Instead of offering to sell interests in qualifying lands, owners may elect to
donate the interests to the state.
(6)
Any acquired interest in qualifying lands by the state under this section shall
be managed as riparian open space.
Sec.
702. RCW
84.33.120 and 1999 c 233 s 20 are each amended to read as follows:
(1)
In preparing the assessment rolls as of January 1, 1982, for taxes payable in
1983 and each January 1st thereafter, the assessor shall list each parcel of
forest land at a value with respect to the grade and class provided in this
subsection and adjusted as provided in subsection (2) of this section and shall
compute the assessed value of the land by using the same assessment ratio he or
she applies generally in computing the assessed value of other property in his
or her county. Values for the several grades of bare forest land shall be as
follows.
LAND
OPERABILITY VALUES
GRADE
CLASS PER ACRE
1 $141
1
2 136
3 131
4 95
1 118
2 2 114
3 110
4 80
1 93
3 2 90
3 87
4 66
1 70
4 2 68
3 66
4 52
1 51
5 2 48
3 46
4 31
1 26
6 2 25
3 25
4 23
1 12
7 2 12
3 11
4 11
8 1
(2) On
or before December 31, 1981, the department shall adjust, by rule under chapter
34.05 RCW, the forest land values contained in subsection (1) of this section
in accordance with this subsection, and shall certify these adjusted values to
the county assessor for his or her use in preparing the assessment rolls as of
January 1, 1982. For the adjustment to be made on or before December 31, 1981,
for use in the 1982 assessment year, the department shall:
(a)
Divide the aggregate value of all timber harvested within the state between
July 1, 1976, and June 30, 1981, by the aggregate harvest volume for the same
period, as determined from the harvester excise tax returns filed with the
department under RCW 82.04.291 and 84.33.071; and
(b)
Divide the aggregate value of all timber harvested within the state between
July 1, 1975, and June 30, 1980, by the aggregate harvest volume for the same
period, as determined from the harvester excise tax returns filed with the
department under RCW 82.04.291 and 84.33.071; and
(c)
Adjust the forest land values contained in subsection (1) of this section by a
percentage equal to one-half of the percentage change in the average values of
harvested timber reflected by comparing the resultant values calculated under
(a) and (b) of this subsection.
For the
adjustments to be made on or before December 31, 1982, and each succeeding year
thereafter, the same procedure shall be followed as described in this
subsection utilizing harvester excise tax returns filed under RCW 82.04.291 and
this chapter except that this adjustment shall be made to the prior year's
adjusted value, and the five-year periods for calculating average harvested
timber values shall be successively one year more recent.
(3) In
preparing the assessment roll for 1972 and each year thereafter, the assessor
shall enter as the true and fair value of each parcel of forest land the
appropriate grade value certified to him or her by the department of revenue,
and he or she shall compute the assessed value of such land by using the same
assessment ratio he or she applies generally in computing the assessed value of
other property in his or her county. In preparing the assessment roll for 1975
and each year thereafter, the assessor shall assess and value as classified forest
land all forest land that is not then designated pursuant to RCW 84.33.120(4)
or 84.33.130 and shall make a notation of such classification upon the
assessment and tax rolls. On or before January 15 of the first year in which
such notation is made, the assessor shall mail notice by certified mail to the
owner that such land has been classified as forest land and is subject to the
compensating tax imposed by this section. If the owner desires not to have
such land assessed and valued as classified forest land, he or she shall give
the assessor written notice thereof on or before March 31 of such year and the
assessor shall remove from the assessment and tax rolls the classification
notation entered pursuant to this subsection, and shall thereafter assess and
value such land in the manner provided by law other than this chapter 84.33
RCW.
(4) In
any year commencing with 1972, an owner of land which is assessed and valued by
the assessor other than pursuant to the procedures set forth in RCW 84.33.110
and this section, and which has, in the immediately preceding year, been
assessed and valued by the assessor as forest land, may appeal to the county
board of equalization by filing an application with the board in the manner
prescribed in subsection (2) of RCW 84.33.130. The county board shall afford
the applicant an opportunity to be heard if the application so requests and
shall act upon the application in the manner prescribed in subsection (3) of
RCW 84.33.130.
(5)
Land that has been assessed and valued as classified forest land as of any year
commencing with 1975 assessment year or earlier shall continue to be so
assessed and valued until removal of classification by the assessor only upon
the occurrence of one of the following events:
(a)
Receipt of notice from the owner to remove such land from classification as
forest land;
(b)
Sale or transfer to an ownership making such land exempt from ad valorem
taxation;
(c)
Determination by the assessor, after giving the owner written notice and an
opportunity to be heard, that, because of actions taken by the owner, such land
is no longer primarily devoted to and used for growing and harvesting timber.
However, land shall not be removed from classification if a governmental
agency, organization, or other recipient identified in subsection (9) or (10)
of this section as exempt from the payment of compensating tax has manifested
its intent in writing or by other official action to acquire a property
interest in classified forest land by means of a transaction that qualifies for
an exemption under subsection (9) or (10) of this section. The governmental
agency, organization, or recipient shall annually provide the assessor of the
county in which the land is located reasonable evidence in writing of the
intent to acquire the classified land as long as the intent continues or within
sixty days of a request by the assessor. The assessor may not request this
evidence more than once in a calendar year;
(d)
Determination that a higher and better use exists for such land than growing
and harvesting timber after giving the owner written notice and an opportunity
to be heard;
(e)
Sale or transfer of all or a portion of such land to a new owner, unless the
new owner has signed a notice of forest land classification continuance, except
transfer to an owner who is an heir or devisee of a deceased owner, shall not,
by itself, result in removal of classification. The signed notice of
continuance shall be attached to the real estate excise tax affidavit provided
for in RCW 82.45.150. The notice of continuance shall be on a form prepared by
the department of revenue. If the notice of continuance is not signed by the
new owner and attached to the real estate excise tax affidavit, all
compensating taxes calculated pursuant to subsection (7) of this section shall
become due and payable by the seller or transferor at time of sale. The county
auditor shall not accept an instrument of conveyance of classified forest land
for filing or recording unless the new owner has signed the notice of
continuance or the compensating tax has been paid, as evidenced by the real
estate excise tax stamp affixed thereto by the treasurer. The seller,
transferor, or new owner may appeal the new assessed valuation calculated under
subsection (7) of this section to the county board of equalization.
Jurisdiction is hereby conferred on the county board of equalization to hear
these appeals.
The
assessor shall remove classification pursuant to (c) or (d) of this subsection
prior to September 30 of the year prior to the assessment year for which
termination of classification is to be effective. Removal of classification as
forest land upon occurrence of (a), (b), (d), or (e) of this subsection shall
apply only to the land affected, and upon occurrence of (c) of this subsection
shall apply only to the actual area of land no longer primarily devoted to and
used for growing and harvesting timber: PROVIDED, That any remaining
classified forest land meets necessary definitions of forest land pursuant to
RCW 84.33.100.
(6)
Within thirty days after such removal of classification as forest land, the
assessor shall notify the owner in writing setting forth the reasons for such
removal. The owner of such land shall thereupon have the right to apply for
designation of such land as forest land pursuant to subsection (4) of this
section or RCW 84.33.130. The seller, transferor, or owner may appeal such
removal to the county board of equalization.
(7)
Unless the owner successfully applies for designation of such land or unless
the removal is reversed on appeal, notation of removal from classification
shall immediately be made upon the assessment and tax rolls, and commencing on
January 1 of the year following the year in which the assessor made such
notation, such land shall be assessed on the same basis as real property is
assessed generally in that county. Except as provided in subsection (5)(e),
(9), or (10) of this section and unless the assessor shall not have mailed
notice of classification pursuant to subsection (3) of this section, a
compensating tax shall be imposed which shall be due and payable to the county
treasurer thirty days after the owner is notified of the amount of the
compensating tax. As soon as possible, the assessor shall compute the amount of
such compensating tax and mail notice to the owner of the amount thereof and
the date on which payment is due. The amount of such compensating tax shall be
equal to the difference, if any, between the amount of tax last levied on such
land as forest land and an amount equal to the new assessed valuation of such
land multiplied by the dollar rate of the last levy extended against such land,
multiplied by a number, in no event greater than ten, equal to the number of
years, commencing with assessment year 1975, for which such land was assessed
and valued as forest land.
(8)
Compensating tax, together with applicable interest thereon, shall become a
lien on such land which shall attach at the time such land is removed from
classification as forest land and shall have priority to and shall be fully
paid and satisfied before any recognizance, mortgage, judgment, debt,
obligation or responsibility to or with which such land may become charged or
liable. Such lien may be foreclosed upon expiration of the same period after
delinquency and in the same manner provided by law for foreclosure of liens for
delinquent real property taxes as provided in RCW 84.64.050. Any compensating
tax unpaid on its due date shall thereupon become delinquent. From the date of
delinquency until paid, interest shall be charged at the same rate applied by
law to delinquent ad valorem property taxes.
(9) The
compensating tax specified in subsection (7) of this section shall not be
imposed if the removal of classification as forest land pursuant to subsection
(5) of this section resulted solely from:
(a)
Transfer to a government entity in exchange for other forest land located
within the state of Washington;
(b) A
taking through the exercise of the power of eminent domain, or sale or transfer
to an entity having the power of eminent domain in anticipation of the exercise
of such power;
(c) A
donation of fee title, development rights, or the right to harvest timber, to a
government agency or organization qualified under RCW 84.34.210 and 64.04.130
for the purposes enumerated in those sections, or the sale or transfer of fee
title to a governmental entity or a nonprofit nature conservancy corporation,
as defined in RCW 64.04.130, exclusively for the protection and conservation of
lands recommended for state natural area preserve purposes by the natural
heritage council and natural heritage plan as defined in chapter 79.70 RCW:
PROVIDED, That at such time as the land is not used for the purposes
enumerated, the compensating tax specified in subsection (7) of this section
shall be imposed upon the current owner;
(d) The
sale or transfer of fee title to the parks and recreation commission for park
and recreation purposes; ((or))
(e)
Official action by an agency of the state of Washington or by the county or
city within which the land is located that disallows the present use of such
land;
(f)
The creation, sale, or transfer of forestry riparian easements under section
504 of this act; or
(g)
The creation, sale, or transfer of a fee interest or a conservation easement
for the riparian open space program under RCW 76.09.040.
(10) In
a county with a population of more than one million inhabitants, the
compensating tax specified in subsection (7) of this section shall not be
imposed if the removal of classification as forest land pursuant to subsection
(5) of this section resulted solely from:
(a) An
action described in subsection (9) of this section; or
(b) A
transfer of a property interest to a government entity, or to a nonprofit
historic preservation corporation or nonprofit nature conservancy corporation,
as defined in RCW 64.04.130, to protect or enhance public resources, or to
preserve, maintain, improve, restore, limit the future use of, or otherwise to
conserve for public use or enjoyment, the property interest being transferred.
At such time as the property interest is not used for the purposes enumerated,
the compensating tax shall be imposed upon the current owner.
(11)
With respect to any land that has been designated prior to May 6, 1974,
pursuant to RCW 84.33.120(4) or 84.33.130, the assessor may, prior to January
1, 1975, on his or her own motion or pursuant to petition by the owner, change,
without imposition of the compensating tax provided under RCW 84.33.140, the
status of such designated land to classified forest land.
Sec.
703. RCW
84.33.140 and 1999 c 233 s 21 are each amended to read as follows:
(1)
When land has been designated as forest land pursuant to RCW 84.33.120(4) or
84.33.130, a notation of such designation shall be made each year upon the
assessment and tax rolls, a copy of the notice of approval together with the
legal description or assessor's tax lot numbers for such land shall, at the
expense of the applicant, be filed by the assessor in the same manner as deeds
are recorded, and such land shall be graded and valued pursuant to RCW
84.33.110 and 84.33.120 until removal of such designation by the assessor upon
occurrence of any of the following:
(a)
Receipt of notice from the owner to remove such designation;
(b)
Sale or transfer to an ownership making such land exempt from ad valorem
taxation;
(c)
Sale or transfer of all or a portion of such land to a new owner, unless the
new owner has signed a notice of forest land designation continuance, except
transfer to an owner who is an heir or devisee of a deceased owner, shall not,
by itself, result in removal of classification. The signed notice of
continuance shall be attached to the real estate excise tax affidavit provided
for in RCW 82.45.150. The notice of continuance shall be on a form prepared by
the department of revenue. If the notice of continuance is not signed by the
new owner and attached to the real estate excise tax affidavit, all
compensating taxes calculated pursuant to subsection (3) of this section shall
become due and payable by the seller or transferor at time of sale. The county
auditor shall not accept an instrument of conveyance of designated forest land
for filing or recording unless the new owner has signed the notice of
continuance or the compensating tax has been paid, as evidenced by the real
estate excise tax stamp affixed thereto by the treasurer. The seller,
transferor, or new owner may appeal the new assessed valuation calculated under
subsection (3) of this section to the county board of equalization.
Jurisdiction is hereby conferred on the county board of equalization to hear
these appeals;
(d)
Determination by the assessor, after giving the owner written notice and an
opportunity to be heard, that:
(i)
Such land is no longer primarily devoted to and used for growing and harvesting
timber. However, land shall not be removed from designation if a governmental
agency, organization, or other recipient identified in subsection (5) or (6) of
this section as exempt from the payment of compensating tax has manifested its
intent in writing or by other official action to acquire a property interest in
designated forest land by means of a transaction that qualifies for an
exemption under subsection (5) or (6) of this section. The governmental
agency, organization, or recipient shall annually provide the assessor of the
county in which the land is located reasonable evidence in writing of the
intent to acquire the designated land as long as the intent continues or within
sixty days of a request by the assessor. The assessor may not request this
evidence more than once in a calendar year;
(ii)
The owner has failed to comply with a final administrative or judicial order
with respect to a violation of the restocking, forest management, fire
protection, insect and disease control and forest debris provisions of Title 76
RCW or any applicable regulations thereunder; or
(iii)
Restocking has not occurred to the extent or within the time specified in the
application for designation of such land.
Removal
of designation upon occurrence of any of (a) through (c) of this subsection
shall apply only to the land affected, and upon occurrence of (d) of this
subsection shall apply only to the actual area of land no longer primarily
devoted to and used for growing and harvesting timber, without regard to other
land that may have been included in the same application and approval for
designation: PROVIDED, That any remaining designated forest land meets
necessary definitions of forest land pursuant to RCW 84.33.100.
(2)
Within thirty days after such removal of designation of forest land, the
assessor shall notify the owner in writing, setting forth the reasons for such
removal. The seller, transferor, or owner may appeal such removal to the
county board of equalization.
(3)
Unless the removal is reversed on appeal a copy of the notice of removal with
notation of the action, if any, upon appeal, together with the legal
description or assessor's tax lot numbers for the land removed from designation
shall, at the expense of the applicant, be filed by the assessor in the same
manner as deeds are recorded, and commencing on January 1 of the year following
the year in which the assessor mailed such notice, such land shall be assessed
on the same basis as real property is assessed generally in that county. Except
as provided in subsection (1)(c), (5), or (6) of this section, a compensating
tax shall be imposed which shall be due and payable to the county treasurer
thirty days after the owner is notified of the amount of the compensating tax.
As soon as possible, the assessor shall compute the amount of such compensating
tax and mail notice to the owner of the amount thereof and the date on which
payment is due. The amount of such compensating tax shall be equal to the
difference between the amount of tax last levied on such land as forest land
and an amount equal to the new assessed valuation of such land multiplied by
the dollar rate of the last levy extended against such land, multiplied by a
number, in no event greater than ten, equal to the number of years for which
such land was designated as forest land.
(4)
Compensating tax, together with applicable interest thereon, shall become a
lien on such land which shall attach at the time such land is removed from
designation as forest land and shall have priority to and shall be fully paid
and satisfied before any recognizance, mortgage, judgment, debt, obligation or
responsibility to or with which such land may become charged or liable. Such
lien may be foreclosed upon expiration of the same period after delinquency and
in the same manner provided by law for foreclosure of liens for delinquent real
property taxes as provided in RCW 84.64.050. Any compensating tax unpaid on
its due date shall thereupon become delinquent. From the date of delinquency
until paid, interest shall be charged at the same rate applied by law to
delinquent ad valorem property taxes.
(5)
The compensating tax specified in subsection (3) of this section shall not be
imposed if the removal of designation pursuant to subsection (1) of this section
resulted solely from:
(a)
Transfer to a government entity in exchange for other forest land located
within the state of Washington;
(b)
A taking through the exercise of the power of eminent domain, or sale or
transfer to an entity having the power of eminent domain in anticipation of the
exercise of such power;
(c)
A donation of fee title, development rights, or the right to harvest timber, to
a government agency or organization qualified under RCW 84.34.210 and 64.04.130
for the purposes enumerated in those sections, or the sale or transfer of fee
title to a governmental entity or a nonprofit nature conservancy corporation,
as defined in RCW 64.04.130, exclusively for the protection and conservation of
lands recommended for state natural area preserve purposes by the natural
heritage council and natural heritage plan as defined in chapter 79.70 RCW:
PROVIDED, That at such time as the land is not used for the purposes
enumerated, the compensating tax specified in subsection (3) of this section
shall be imposed upon the current owner;
(d)
The sale or transfer of fee title to the parks and recreation commission for
park and recreation purposes; ((or))
(e)
Official action by an agency of the state of Washington or by the county or
city within which the land is located that disallows the present use of such
land;
(f)
The creation, sale, or transfer of forestry riparian easements under section
504 of this act; or
(g)
The creation, sale, or transfer of a fee interest or a conservation easement
for the riparian open space program under RCW 76.09.040.
(6)
In a county with a population of more than one million inhabitants, the
compensating tax specified in subsection (3) of this section shall not be
imposed if the removal of classification as forest land pursuant to subsection
(1) of this section resulted solely from:
(a)
An action described in subsection (5) of this section; or
(b)
A transfer of a property interest to a government entity, or to a nonprofit
historic preservation corporation or nonprofit nature conservancy corporation,
as defined in RCW 64.04.130, to protect or enhance public resources, or to
preserve, maintain, improve, restore, limit the future use of, or otherwise to
conserve for public use or enjoyment, the property interest being transferred.
At such time as the property interest is not used for the purposes enumerated,
the compensating tax shall be imposed upon the current owner.
Sec.
704. RCW
84.33.145 and 1997 c 299 s 3 are each amended to read as follows:
(1)
If no later than thirty days after removal of classification or designation the
owner applies for classification under RCW 84.34.020 (1), (2), or (3), then the
classified or designated forest land shall not be considered removed from
classification or designation for purposes of the compensating tax under RCW
84.33.120 or 84.33.140 until the application for current use classification
under RCW 84.34.030 is denied or the property is removed from designation under
RCW 84.34.108. Upon removal from designation under RCW 84.34.108, the amount
of compensating tax due under this chapter shall be equal to:
(a)
The difference, if any, between the amount of tax last levied on such land as
forest land and an amount equal to the new assessed valuation of such land when
removed from designation under RCW 84.34.108 multiplied by the dollar rate of
the last levy extended against such land, multiplied by
(b)
A number equal to:
(i)
The number of years the land was classified or designated under this chapter,
if the total number of years the land was classified or designated under this
chapter and classified under chapter 84.34 RCW is less than ten; or
(ii)
Ten minus the number of years the land was classified under chapter 84.34 RCW,
if the total number of years the land was classified or designated under this
chapter and classified under chapter 84.34 RCW is at least ten.
(2)
Nothing in this section authorizes the continued classification or designation
under this chapter or defers or reduces the compensating tax imposed upon
forest land not transferred to classification under subsection (1) of this
section which does not meet the necessary definitions of forest land under RCW
84.33.100. Nothing in this section affects the additional tax imposed under
RCW 84.34.108.
(3) In a county with a population of more than one million
inhabitants, no amount of compensating tax is due under this section if the
removal from classification under RCW 84.34.108 results from a transfer of
property described in RCW 84.34.108(((5))) (6).
Sec.
705. RCW
84.34.080 and 1992 c 69 s 11 are each amended to read as follows:
When
land which has been classified under this chapter as open space land, farm and
agricultural land, or timber land is applied to some other use, except through
compliance with RCW 84.34.070, or except as a result solely from any one of the
conditions listed in RCW 84.34.108(((5))) (6), the owner shall
within sixty days notify the county assessor of such change in use and
additional real property tax shall be imposed upon such land in an amount equal
to the sum of the following:
(1)
The total amount of the additional tax and applicable interest due under RCW
84.34.108; plus
(2)
A penalty amounting to twenty percent of the amount determined in subsection
(1) of this section.
Sec.
706. RCW
84.34.108 and 1999 c 139 s 2 are each amended to read as follows:
(1)
When land has once been classified under this chapter, a notation of such
classification shall be made each year upon the assessment and tax rolls and
such land shall be valued pursuant to RCW 84.34.060 or 84.34.065 until removal
of all or a portion of such classification by the assessor upon occurrence of
any of the following:
(a)
Receipt of notice from the owner to remove all or a portion of such
classification;
(b)
Sale or transfer to an ownership, except a transfer that resulted from a
default in loan payments made to or secured by a governmental agency that
intends to or is required by law or regulation to resell the property for the
same use as before, making all or a portion of such land exempt from ad valorem
taxation;
(c)
Sale or transfer of all or a portion of such land to a new owner, unless the
new owner has signed a notice of classification continuance, except transfer to
an owner who is an heir or devisee of a deceased owner shall not, by itself,
result in removal of classification. ((The signed notice of continuance
shall be attached to the real estate excise tax affidavit provided for in RCW
82.45.150.)) The notice of continuance shall be on a form prepared by the
department of revenue. If the notice of continuance is not signed by the new
owner and attached to the real estate excise tax affidavit, all additional
taxes calculated pursuant to subsection (((3))) (4) of this
section shall become due and payable by the seller or transferor at time of
sale. The county auditor shall not accept an instrument of conveyance of
classified land for filing or recording unless the new owner has signed the
notice of continuance or the additional tax has been paid. The seller,
transferor, or new owner may appeal the new assessed valuation calculated under
subsection (((3))) (4) of this section to the county board of
equalization. Jurisdiction is hereby conferred on the county board of
equalization to hear these appeals;
(d)
Determination by the assessor, after giving the owner written notice and an
opportunity to be heard, that all or a portion of such land no longer meets the
criteria for classification under this chapter. The criteria for
classification pursuant to this chapter continue to apply after classification
has been granted.
The
granting authority, upon request of an assessor, shall provide reasonable
assistance to the assessor in making a determination whether such land
continues to meet the qualifications of RCW 84.34.020 (1) or (3). The
assistance shall be provided within thirty days of receipt of the request.
(2)
Land may not be removed from classification because of:
(a)
The creation, sale, or transfer of forestry riparian easements under section
504 of this act; or
(b)
The creation, sale, or transfer of a fee interest or a conservation easement
for the riparian open space program under RCW 76.09.040.
(3)
Within thirty days after such removal of all or a portion of such land from
current use classification, the assessor shall notify the owner in writing,
setting forth the reasons for such removal. The seller, transferor, or owner
may appeal such removal to the county board of equalization.
(((3)))
(4) Unless the removal is reversed on appeal, the assessor shall revalue
the affected land with reference to full market value on the date of removal
from classification. Both the assessed valuation before and after the removal
of classification shall be listed and taxes shall be allocated according to
that part of the year to which each assessed valuation applies. Except as
provided in subsection (((5))) (6) of this section, an additional
tax, applicable interest, and penalty shall be imposed which shall be due and
payable to the county treasurer thirty days after the owner is notified of the
amount of the additional tax. As soon as possible, the assessor shall compute
the amount of such an additional tax, applicable interest, and penalty and the
treasurer shall mail notice to the owner of the amount thereof and the date on
which payment is due. The amount of such additional tax, applicable interest,
and penalty shall be determined as follows:
(a)
The amount of additional tax shall be equal to the difference between the
property tax paid as "open space land", "farm and agricultural
land", or "timber land" and the amount of property tax otherwise
due and payable for the seven years last past had the land not been so
classified;
(b)
The amount of applicable interest shall be equal to the interest upon the
amounts of such additional tax paid at the same statutory rate charged on
delinquent property taxes from the dates on which such additional tax could
have been paid without penalty if the land had been assessed at a value without
regard to this chapter;
(c)
The amount of the penalty shall be as provided in RCW 84.34.080. The penalty
shall not be imposed if the removal satisfies the conditions of RCW 84.34.070.
(((4)))
(5) Additional tax, applicable interest, and penalty, shall become a
lien on such land which shall attach at the time such land is removed from
classification under this chapter and shall have priority to and shall be fully
paid and satisfied before any recognizance, mortgage, judgment, debt,
obligation or responsibility to or with which such land may become charged or
liable. Such lien may be foreclosed upon expiration of the same period after
delinquency and in the same manner provided by law for foreclosure of liens for
delinquent real property taxes as provided in RCW 84.64.050 now or as hereafter
amended. Any additional tax unpaid on its due date shall thereupon become
delinquent. From the date of delinquency until paid, interest shall be charged
at the same rate applied by law to delinquent ad valorem property taxes.
(((5)))
(6) The additional tax, applicable interest, and penalty specified in
subsection (((3))) (4) of this section shall not be imposed if
the removal of classification pursuant to subsection (1) of this section
resulted solely from:
(a)
Transfer to a government entity in exchange for other land located within the
state of Washington;
(b)(i)
A taking through the exercise of the power of eminent domain, or (ii) sale or
transfer to an entity having the power of eminent domain in anticipation of the
exercise of such power, said entity having manifested its intent in writing or
by other official action;
(c)
A natural disaster such as a flood, windstorm, earthquake, or other such
calamity rather than by virtue of the act of the landowner changing the use of
such property;
(d)
Official action by an agency of the state of Washington or by the county or
city within which the land is located which disallows the present use of such
land;
(e)
Transfer of land to a church when such land would qualify for exemption
pursuant to RCW 84.36.020;
(f)
Acquisition of property interests by state agencies or agencies or
organizations qualified under RCW 84.34.210 and 64.04.130 for the purposes
enumerated in those sections: PROVIDED, That at such time as these property
interests are not used for the purposes enumerated in RCW 84.34.210 and
64.04.130 the additional tax specified in subsection (((3))) (4)
of this section shall be imposed;
(g)
Removal of land classified as farm and agricultural land under RCW
84.34.020(2)(d); ((or))
(h)
Removal of land from classification after enactment of a statutory exemption
that qualifies the land for exemption and receipt of notice from the owner to
remove the land from classification;
(i)
The creation, sale, or transfer of forestry riparian easements under section
504 of this act; or
(j)
The creation, sale, or transfer of a fee interest or a conservation easement
for the riparian open space program under RCW 76.09.040.
NEW
SECTION. Sec. 707. A
new section is added to chapter 76.09 RCW to read as follows:
Prior
to the sale or transfer of land or perpetual timber rights subject to
continuing forest land obligations under the forest practices rules adopted
under section 204 of this act, as specifically identified in the forests and
fish report the seller shall notify the buyer of the existence and nature of
such a continuing obligation and the buyer shall sign a notice of continuing
forest land obligation indicating the buyer's knowledge thereof. The notice
shall be on a form prepared by the department and shall be sent to the
department by the seller at the time of sale or transfer of the land or
perpetual timber rights and retained by the department. If the seller fails to
notify the buyer about the continuing forest land obligation, the seller shall
pay the buyer's costs related to such continuing forest land obligation,
including all legal costs and reasonable attorneys' fees, incurred by the buyer
in enforcing the continuing forest land obligation against the seller. Failure
by the seller to send the required notice to the department at the time of sale
shall be prima facie evidence, in an action by the buyer against the seller for
costs related to the continuing forest land obligation, that the seller did not
notify the buyer of the continuing forest land obligation prior to sale.
PART
VIII
ENFORCEMENT
Sec.
801. RCW
76.09.140 and 1993 c 482 s 1 are each amended to read as follows:
(1)
The department of natural resources may take any necessary action to enforce
any final order or final decision, and may disapprove ((for up to one year))
any forest practices application or notification submitted by any person who
has failed to comply with a final order or final decision or has failed to pay
any civil penalties as provided in RCW 76.09.170, for up to one year from
the issuance of a notice of intent to disapprove notifications and applications
under this section or until the violator pays all outstanding civil penalties
and complies with all validly issued and outstanding notices to comply and stop
work orders, whichever is longer. For purposes of chapter 482, Laws of
1993, the terms "final order" and "final decision" shall
mean the same as set forth in RCW 76.09.080, 76.09.090, and 76.09.110. The
department shall provide written notice of its intent to disapprove an
application or notification under this subsection. The department shall
forward copies of its notice of intent to disapprove to any affected
landowner. The disapproval period shall run from thirty days following the
date of actual notice or when all administrative and judicial appellate
processes, if any, have been exhausted. Any person provided the notice may
seek review from the appeals board by filing a request for review within thirty
days of the date of the notice of intent. While the notice of intent to
disapprove is in effect, the violator may not serve as a person in charge of,
be employed by, manage, or otherwise participate to any degree in forest
practices.
(2)
On request of the department, the attorney general may take action necessary to
enforce this chapter, including, but not limited to((,)): Seeking
penalties, interest, costs, and attorneys' fees; enforcing final orders
or decisions((,)); and seeking civil injunctions, show cause
orders, or contempt orders.
(3)
A county may bring injunctive, declaratory, or other actions for enforcement
for forest practice activities within its jurisdiction in the superior court as
provided by law against the department, the forest landowner, timber owner or
operator to enforce the forest practice ((regulations)) rules or
any final order of the department, or the appeals board. No civil or criminal
penalties shall be imposed for past actions or omissions if such actions or
omissions were conducted pursuant to an approval or directive of the
department. Injunctions, declaratory actions, or other actions for enforcement
under this subsection may not be commenced unless the department fails to take
appropriate action after ten days written notice to the department by the
county of a violation of the forest practices rules or final orders of the
department or the appeals board.
(4)(a)
The department may require financial assurance prior to the conduct of any
further forest practices from an operator or landowner who within the preceding
three-year period has:
(i)
Operated without an approved forest practices application, other than an
unintentional operation in connection with an approved application outside the
approved boundary of such an application;
(ii)
Continued to operate in breach of, or failed to comply with, the terms of an
effective stop work order or notice to comply; or
(iii)
Failed to pay any civil or criminal penalty.
(b)
The department may deny any application for failure to submit financial
assurances as required.
Sec.
802. RCW
76.09.150 and 1974 ex.s. c 137 s 15 are each amended to read as follows:
(1)
The department shall make inspections of forest lands, before, during and after
the conducting of forest practices as necessary for the purpose of ((insuring))
ensuring compliance with this chapter and the forest practices ((regulations))
rules and to ((insure)) ensure that no material damage
occurs to the natural resources of this state as a result of such practices.
(2)
Any duly authorized representative of the department shall have the right to
enter upon forest land at any reasonable time to enforce the provisions of this
chapter and the forest practices ((regulations)) rules.
(3)
The department or the department of ecology may apply for an administrative
inspection warrant to either Thurston county superior court, or the superior
court in the county in which the property is located. An administrative
inspection warrant may be issued where:
(a)
The department has attempted an inspection of forest lands under this chapter
to ensure compliance with this chapter and the forest practice rules or to
ensure that no potential or actual material damage occurs to the natural
resources of this state, and access to all or part of the forest lands has been
actually or constructively denied; or
(b)
The department has reasonable cause to believe that a violation of this chapter
or of rules adopted under this chapter is occurring or has occurred.
(4)
In connection with any watershed analysis, any review of a pending application
by an identification team appointed by the department, any compliance studies,
any effectiveness monitoring, or other research that has been agreed to by a
landowner, the department may invite representatives of other agencies, tribes,
and interest groups to accompany a department representative and, at the
landowner's election, the landowner, on any such inspections. Reasonable
efforts shall be made by the department to notify the landowner of the persons
being invited onto the property and the purposes for which they are being
invited.
Sec.
803. RCW
76.09.170 and 1993 c 482 s 2 are each amended to read as follows:
(1)
Every person who violates any provision of RCW 76.09.010 through 76.09.280 or
of the forest practices rules, or who converts forest land to a use other than
commercial timber operation within three years after completion of the forest
practice without the consent of the county, city, or town, shall be subject to
a penalty in an amount of not more than ten thousand dollars for every such
violation. Each and every such violation shall be a separate and distinct
offense. In case of a failure to comply with a stop work order, every day's
continuance shall be a separate and distinct violation. Every person who
through an act of commission or omission procures, aids or abets in the
violation shall be considered to have violated the provisions of this section
and shall be subject to the penalty in this section. No penalty shall be
imposed under this section upon any governmental official, an employee of any
governmental department, agency, or entity, or a member of any board or
advisory committee created by this chapter for any act or omission in his or
her duties in the administration of this chapter or of any rule adopted under
this chapter.
(2)
The department shall develop and recommend to the board a penalty schedule to
determine the amount to be imposed under this section. The board shall adopt
by rule, pursuant to chapter 34.05 RCW, such penalty schedule to be effective
no later than January 1, 1994. The schedule shall be developed in consideration
of the following:
(a)
Previous violation history;
(b)
Severity of the impact on public resources;
(c)
Whether the violation of this chapter or its rules was intentional;
(d)
Cooperation with the department;
(e)
Repairability of the adverse effect from the violation; and
(f)
The extent to which a penalty to be imposed on a forest landowner for a forest
practice violation committed by another should be reduced because the owner was
unaware of the violation and has not received substantial economic benefits
from the violation.
(3)
The penalty in this section shall be imposed by a notice in writing, either by
certified mail with return receipt requested or by personal service, to the
person incurring the same from the department describing the violation with
reasonable particularity. Within fifteen days after the notice is received,
the person incurring the penalty may apply in writing to the department for the
remission or mitigation of such penalty. Upon receipt of the application, that
department may remit or mitigate the penalty upon whatever terms that
department in its discretion deems proper, provided the department deems such
remission or mitigation to be in the best interests of carrying out the
purposes of this chapter. The department shall have authority to ascertain the
facts regarding all such applications in such reasonable manner and under such
rule as it may deem proper.
(4)
Any person incurring a penalty under this section may appeal the penalty to the
forest practices appeals board. Such appeals shall be filed within thirty days
of receipt of notice imposing any penalty unless an application for remission
or mitigation is made to the department. When such an application for
remission or mitigation is made, such appeals shall be filed within thirty days
of receipt of notice from the department setting forth the disposition of the
application for remission or mitigation.
(5)
The penalty imposed under this section shall become due and payable thirty days
after receipt of a notice imposing the same unless application for remission or
mitigation is made or an appeal is filed. When such an application for
remission or mitigation is made, any penalty incurred under this section shall
become due and payable thirty days after receipt of notice setting forth the
disposition of such application unless an appeal is filed from such
disposition. Whenever an appeal of the penalty incurred is filed, the penalty
shall become due and payable only upon completion of all administrative and
judicial review proceedings and the issuance of a final decision confirming the
penalty in whole or in part.
(6)
If the amount of any penalty is not paid to the department within thirty days
after it becomes due and payable, the attorney general, upon the request of the
department, shall bring an action in the name of the state of Washington in the
superior court of Thurston county or of any county in which such violator may
do business, to recover such penalty, interest, costs, and attorneys' fees.
In all such actions the procedure and rules of evidence shall be the same as an
ordinary civil action except as otherwise in this chapter provided. In
addition to or as an alternative to seeking enforcement of penalties in
superior court, the department may bring an action in district court as
provided in Title 3 RCW, to collect penalties, interest, costs, and
attorneys' fees.
(7)
Penalties imposed under this section for violations associated with a
conversion to a use other than commercial timber operation shall be a lien upon
the real property of the person assessed the penalty and the department may
collect such amount in the same manner provided in chapter 60.04 RCW for
mechanics' liens.
(8)
Any person incurring a penalty imposed under this section is also responsible
for the payment of all costs and attorneys' fees incurred in connection with
the penalty and interest accruing on the unpaid penalty amount.
PART
IX
WATERSHED
ANALYSIS
Sec.
901. RCW
76.09.010 and 1993 c 443 s 1 are each amended to read as follows:
(1)
The legislature hereby finds and declares that the forest land resources are among
the most valuable of all resources in the state; that a viable forest products
industry is of prime importance to the state's economy; that it is in the
public interest for public and private commercial forest lands to be managed
consistent with sound policies of natural resource protection; that coincident
with maintenance of a viable forest products industry, it is important to
afford protection to forest soils, fisheries, wildlife, water quantity and
quality, air quality, recreation, and scenic beauty.
(2)
The legislature further finds and declares it to be in the public interest of
this state to create and maintain through the adoption of this chapter a
comprehensive state-wide system of laws and forest practices ((regulations))
rules which will achieve the following purposes and policies:
(a)
Afford protection to, promote, foster and encourage timber growth, and require
such minimum reforestation of commercial tree species on forest lands as will
reasonably utilize the timber growing capacity of the soil following current
timber harvest;
(b)
Afford protection to forest soils and public resources by utilizing all
reasonable methods of technology in conducting forest practices;
(c)
Recognize both the public and private interest in the profitable growing and
harvesting of timber;
(d)
Promote efficiency by permitting maximum operating freedom consistent with the
other purposes and policies stated herein;
(e)
Provide for regulation of forest practices so as to avoid unnecessary
duplication in such ((regulation)) rules;
(f)
Provide for interagency input and intergovernmental and tribal coordination and
cooperation;
(g)
Achieve compliance with all applicable requirements of federal and state law
with respect to nonpoint sources of water pollution from forest practices;
(h)
To consider reasonable land use planning goals and concepts contained in local
comprehensive plans and zoning regulations; ((and))
(i)
Foster cooperation among managers of public resources, forest landowners,
Indian tribes and the citizens of the state; and
(j)
Develop a watershed analysis system that addresses the cumulative effect of
forest practices on, at a minimum, the public resources of fish, water, and public
capital improvements of the state and its political subdivisions.
(3)
The legislature further finds and declares that it is also in the public
interest of the state to encourage forest landowners to undertake corrective
and remedial action to reduce the impact of mass earth movements and fluvial
processes.
(4)
The legislature further finds and declares that it is in the public interest
that the applicants for state forest practices permits should assist in
paying for the cost of review and permitting necessary for the environmental
protection of these resources.
Sec.
902. RCW
76.09.220 and 1999 c 90 s 1 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 43.03.250. The director of the environmental hearings office shall
make the determination, required under RCW 43.03.250, as to what statutorily
prescribed duties, in addition to attendance at a hearing or meeting of the
board, shall merit compensation. This 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 or her 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 chair, and shall
at least biennially thereafter meet and elect or reelect a 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))
adopting 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 RCW 76.09.350.
(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 or watershed analysis 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 ensure that the provisions of
this chapter are complied with.
(b)
The review proceedings authorized in (a) of this subsection are subject to the
provisions of chapter 34.05 RCW pertaining to procedures in adjudicative
proceedings.
*NEW
SECTION. Sec. 903.
In order to facilitate healthy streams and
foster salmonid recovery efforts, the department of natural resources shall
conduct a survey of publicly held lands in Washington with unconfined avulsing
streams as defined in section 301 of this act that do not have sufficient
forest canopy to adequately shade such streams. By January 1, 2001, the
department shall report such findings to the legislature along with the reasons
for the lack of canopy and an estimate of the resources needed and a schedule
for reforestation of such lands.
*Sec. 903 was vetoed. See message at end of chapter.
PART
X
FOREST
PRACTICES BOARD COMPOSITION
Sec.
1001. RCW
76.09.030 and 1995 c 399 s 207 are each amended to read as follows:
(1)
There is hereby created the forest practices board of the state of Washington
as an agency of state government consisting of members as follows:
(a)
The commissioner of public lands or the commissioner's designee;
(b)
The director of the department of community, trade, and economic development or
the director's designee;
(c)
The director of the department of agriculture or the director's designee;
(d)
The director of the department of ecology or the director's designee;
(e)
The director of the department of fish and wildlife or the director's
designee;
(f)
An elected member of a county legislative authority appointed by the governor:
PROVIDED, That such member's service on the board shall be conditioned on the
member's continued service as an elected county official; and
(((f)))
(g) Six members of the general public appointed by the governor, one of
whom shall be an owner of not more than five hundred acres of forest land, and
one of whom shall be an independent logging contractor.
(2)
The director of the department of fish and wildlife's service on the board
may be terminated two years after the effective date of this section if the
legislature finds that after two years the department has not made substantial
progress toward integrating the laws, rules, and programs governing forest
practices, chapter 76.09 RCW, and the laws, rules, and programs governing
hydraulic projects, chapter 75.20 RCW. Such a finding shall be based solely on
whether the department of fish and wildlife makes substantial progress as
defined in this subsection, and will not be based on other actions taken as a
member of the board. Substantial progress shall include recommendations to the
legislature for closer integration of the existing rule-making authorities of the
board and the department of fish and wildlife, and closer integration of the
forest practices and hydraulics permitting processes, including exploring the
potential for a consolidated permitting process. These recommendations shall
be designed to resolve problems currently associated with the existing dual
regulatory and permitting processes.
(3)
The members of the initial board appointed by the governor shall be appointed
so that the term of one member shall expire December 31, 1975, the term of one
member shall expire December 31, 1976, the term of one member shall expire
December 31, 1977, the terms of two members shall expire December 31, 1978, and
the terms of two members shall expire December 31, 1979. Thereafter, each
member shall be appointed for a term of four years. Vacancies on the board
shall be filled in the same manner as the original appointments. Each member
of the board shall continue in office until his or her successor is appointed
and qualified. The commissioner of public lands or the commissioner's designee
shall be the chairman of the board.
(((3)))
(4) The board shall meet at such times and places as shall be designated
by the chairman or upon the written request of the majority of the board. The
principal office of the board shall be at the state capital.
(((4)))
(5) Members of the board, except public employees and elected officials,
shall be compensated in accordance with RCW 43.03.250. Each member shall be
entitled to reimbursement for travel expenses incurred in the performance of
their duties as provided in RCW 43.03.050 and 43.03.060.
(((5)))
(6) The board may employ such clerical help and staff pursuant to
chapter 41.06 RCW as is necessary to carry out its duties.
PART
XI
WATER
QUALITY COORDINATION
Sec.
1101. RCW
90.48.420 and 1975 1st ex.s. c 200 s 13 are each amended to read as follows:
(1)
The department of ecology, pursuant to powers vested in it previously by
chapter 90.48 RCW and consistent with the policies of said chapter and RCW
90.54.020(3), shall be solely responsible for establishing water quality
standards for waters of the state. On or before January 1, 1975, the
department of ecology shall examine existing ((regulations)) rules
containing water quality standards and other applicable rules ((and
regulations)) of said department pertaining to waters of the state affected
by nonpoint sources of pollution arising from forest practices and, when it
appears appropriate to the department of ecology, modify said ((regulations))
rules. In any such examination or modification the department of
ecology shall consider such factors, among others, as uses of the receiving
waters, diffusion, down-stream cooling, and reasonable transient and short-term
effects resulting from forest practices.
((Promulgation))
Adoption of forest practices ((regulations)) rules pertaining
to water quality by ((the department of ecology and)) the forest
practices board((,)) shall be accomplished after reaching agreement
with the director of the department or the director's designee on the board. Adoption
shall be accomplished so that compliance with such forest practice ((regulations))
rules will achieve compliance with water pollution control laws.
(2)
The department of ecology shall monitor water quality to determine whether
revisions in such water quality standards or revisions in such forest practices
((regulations)) rules are necessary to accomplish the foregoing
result, and either ((promulgate)) adopt appropriate revisions to
such water quality standards or propose appropriate revisions to such forest
practices ((regulations)) rules or both.
(3)
Notwithstanding any other provisions of chapter 90.48 RCW or of the rules ((and
regulations promulgated)) adopted thereunder, no permit system
pertaining to nonpoint sources of pollution arising from forest practices shall
be authorized, and no civil or criminal penalties shall be imposed with respect
to any forest practices conducted in full compliance with the applicable
provisions of RCW 76.09.010 through 76.09.280, forest practices ((regulations))
rules, and any approvals or directives of the department of natural
resources thereunder.
(4)
Prior to the department of ecology taking action under statutes or ((regulations))
rules relating to water quality, regarding violations of water quality
standards arising from forest practices, the department of ecology shall notify
the department of natural resources.
PART
XII
STATE
ENVIRONMENTAL POLICY ACT
NEW
SECTION. Sec. 1201. A
new section is added to chapter 43.21C RCW to read as follows:
(1)
Decisions pertaining to the following kinds of actions under chapter
. . ., Laws of 1999 1st sp. sess. (this act) are not subject to any
procedural requirements implementing RCW 43.21C.030(2)(c): (a) Approval of
forest road maintenance and abandonment plans under chapter 76.09 RCW and
RCW 75.20.100; (b) approval by the department of natural resources of
future timber harvest schedules involving east-side clear cuts under rules implementing
chapter 76.09 RCW; (c) acquisitions of forest lands in stream channel migration
zones under RCW 76.09.040; and (d) acquisitions of conservation easements
pertaining to forest lands in riparian zones under section 504 of this act.
(2)
For purposes of the department's threshold determination on a watershed
analysis, the department shall not make a determination of significance unless
the prescriptions themselves, compared to rules or prescriptions in place prior
to the analysis, will cause probable significant adverse impact on elements of
the environment other than those addressed in the watershed analysis process.
Nothing in this subsection shall be construed to effect the outcome of pending
litigation regarding the department's authority in making a threshold
determination on a watershed analysis.
PART
XIII
FEDERAL
ASSURANCES
NEW
SECTION. Sec. 1301. A
new section is added to chapter 75.46 RCW under the subchapter heading
"federal assurances related to forest practices conducted under the state
salmon recovery strategy" to read as follows:
(1)
Chapter . . ., Laws of 1999 1st sp. sess. (this act) has been enacted
on the assumption that the federal assurances described in the forests and fish
report as defined in RCW 76.09.020 will be obtained and that forest practices
conducted in accordance with chapter . . ., Laws of 1999 1st sp.
sess. (this act) and the rules adopted under chapter . . ., Laws of
1999 1st sp. sess. (this act) will not be subject to additional regulations or
restrictions for aquatic resources except as provided in the forests and fish
report.
(2)
The occurrence of any of the following events shall constitute a failure of
assurances:
(a)
Either (i) the national marine fisheries service or the United States fish and
wildlife service fails to promulgate an effective rule under 16 U.S.C. Sec.
1533(d) covering each aquatic resource that is listed as threatened under the
endangered species act within two years after the date on which the aquatic
resource is so listed or, in the case of bull trout, within two years after the
effective date of this section; or (ii) any such rule fails to permit any
incidental take that would occur from the conduct of forest practices in
compliance with the rules adopted under chapter . . ., Laws of 1999
1st sp. sess. (this act) or fails to confirm that such forest practices would
not otherwise be in violation of the endangered species act and the regulations
promulgated under that act. However, this subsection (2)(a) is not applicable
to any aquatic resource covered by an incidental take permit described in (c)
of this subsection;
(b)
Either the national marine fisheries service or the United States fish and
wildlife service shall promulgate an effective rule under 16 U.S.C. Sec.
1533(d) covering any aquatic resource that would preclude the conduct of forest
practices consistent with the prescriptions outlined in the forests and fish
report. However, this subsection (2)(b) is not applicable to any aquatic
resource covered by an incidental take permit described in (c) of this
subsection;
(c)
Either the secretary of the interior or the secretary of commerce fails to
issue an acceptable incidental take permit under 16 U.S.C. Sec. 1539(a)
covering all fish and wildlife species included within aquatic resources on or
before June 30, 2003. An acceptable incidental take permit will (i) permit the
incidental take, if any, of all fish and wildlife species included within
aquatic resources resulting from the conduct of forest practices in compliance
with the prescriptions outlined in the forests and fish report; (ii) provide
protection to the state of Washington and its subdivisions and to landowners
and operators; (iii) not require the commitment of additional resources beyond
those required to be committed under the forests and fish report; and (iv)
provide "no-surprises" protection as described in 50 C.F.R. Parts 17
and 222 (1998);
(d)
Either the national marine fisheries service or the United States fish and
wildlife service fails to promulgate an effective rule under 16 U.S.C. Sec.
1533(d) within five years after the date on which a fish species is listed as
threatened or endangered under the endangered species act which prohibits
actions listed under 16 U.S.C. 1538;
(e)
The environmental protection agency or department of ecology fails to provide
the clean water act assurances described in appendix M to the forests and fish
report; or
(f)
The assurances described in (a) through (e) of this subsection are reversed or
otherwise rendered ineffective by subsequent federal legislation or rulemaking
or by final decision of any court of competent jurisdiction.
Upon
the occurrence of a failure of assurances, any agency, tribe, or other
interested person including, without limitation, any forest landowner, may
provide written notice of the occurrence of such failure of assurances to the
legislature and to the office of the governor. Promptly upon receipt of such a
notice, the governor shall review relevant information and if he or she
determines that a failure of assurances has occurred, the governor shall make
such a finding in a written report with recommendations and deliver such report
to the legislature. Upon notice of the occurrence of a failure of assurances,
the legislature shall review chapter . . ., Laws of 1999 1st sp.
sess. (this act), all rules adopted by the forest practices board, the department
of ecology, or the department of fish and wildlife at any time after January 1,
1999, that were adopted primarily for the protection of one or more aquatic
resources and affect forest practices and the terms of the forests and fish
report, and shall take such action, including the termination of funding or the
modification of other statutes, as it deems appropriate.
(3)
The governor may negotiate with federal officials, directly or through
designated representatives, on behalf of the state and its agencies and
subdivisions, to obtain assurances from federal agencies to the effect that
compliance with the forest practices rules as amended under chapter
. . ., Laws of 1999 1st sp. sess. (this act) and implementation of
the recommendations in the forests and fish report will satisfy federal
requirements under the endangered species act and the clean water act and
related regulations, including the negotiation of a rule adopted under section
4(d) of the endangered species act, entering into implementation agreements and
receiving incidental take permits under section 10 of the endangered species
act or entering into other intergovernmental agreements.
PART
XIV
MISCELLANEOUS
NEW
SECTION. Sec. 1401. RCW
90.28.150 (Improving streams for logging) and 1891 c 120 s 1 are
each repealed.
NEW
SECTION. Sec. 1402. A
new section is added to chapter 76.09 RCW to read as follows:
The
forests and fish account is created in the state treasury. Receipts from
appropriations, federal grants, and gifts from private organizations and
individuals or other sources may be deposited into the account. Moneys in the
account may be spent only after appropriation. Expenditures from the account
may only be used for the establishment and operation of the small forest
landowner office under section 503 of this act, the purchase of easements under
section 504 of this act, the purchase of lands under RCW 76.09.040, or other
activities necessary to implement chapter . . ., Laws of 1999 1st sp.
sess. (this act).
NEW
SECTION. Sec. 1403. Part
headings used in this act are not any part of the law.
*NEW
SECTION. Sec. 1404.
If by December 31, 2004, harvest levels of Snake
river fall chinook salmon, Lower Columbia river wild chinook salmon and
Willamette river spring chinook salmon in Alaskan waters are not reduced
twenty-five percent from 1997 harvest levels, this act is null and void.
*Sec. 1404 was vetoed. See message at end of chapter.
NEW
SECTION. Sec. 1405.
Sections 201, 202, and 203 of this act are necessary for the immediate
preservation of the public peace, health, or safety, or support of the state
government and its existing public institutions, and take effect immediately.
