BILL REQ. #:  Z-0409.2 

Read first time 01/22/2003.   Referred to Committee on Natural Resources, Energy & Water.

     AN ACT Relating to assisting small forest landowners with the forest road maintenance and abandonment plan elements of the forest practices rules; amending RCW 76.09.020, 76.09.055, and 76.09.390; adding new sections to chapter 76.09 RCW; adding a new section to chapter 76.13 RCW; adding a new section to chapter 77.12 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that the 1999 act known as the forests and fish law contains a requirement for all forest landowners to complete a road maintenance and abandonment plan. In the time since the law's 1999 enactment, it has become clear that the road maintenance and abandonment plan requirement may cause an unforseen and unintended disproportionate financial hardship on small forest landowners.
     (2) The legislature further finds that the commissioner of public lands and the governor have explored solutions that minimize the hardship caused to small forest landowners by the forest road maintenance and abandonment requirements of the forests and fish law, while maintaining protection for public resources. This act represents the bulk of the recommendations stemming from that process.

Sec. 2   RCW 76.09.020 and 2002 c 17 s 1 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" means the forest practices appeals board created by RCW 76.09.210.
     (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" means the commissioner of public lands.
     (5) "Contiguous" 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.
     (6) "Conversion to a use other than commercial timber operation" means a bona fide conversion to an active use which is incompatible with timber growing and as may be defined by forest practices rules.
     (7) "Department" means the department of natural resources.
     (8) "Forest land" means all land which is capable of supporting a merchantable stand of timber and is not being actively used for a use which is incompatible with timber growing. Forest land does not include agricultural land that is or was enrolled in the conservation reserve enhancement program by contract if such agricultural land was historically used for agricultural purposes and the landowner intends to continue to use the land for agricultural purposes in the future.
     (9) "Forest landowner" 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.
     (10) "Forest practice" means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:
     (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.
     (11) "Forest practices rules" means any rules adopted pursuant to RCW 76.09.040.
     (12) "Forest trees" does not include hardwood trees cultivated by agricultural methods in growing cycles shorter than fifteen years if the trees were planted on land that was not in forest use immediately before the trees were planted and before the land was prepared for planting the trees. "Forest trees" includes Christmas trees, but does not include Christmas trees that are cultivated by agricultural methods, as that term is defined in RCW 84.33.035.
     (13) "Forests and fish report" means the forests and fish report to the board dated April 29, 1999.
     (14) "Application" means the application required pursuant to RCW 76.09.050.
     (15) "Operator" means any person engaging in forest practices except an employee with wages as his or her sole compensation.
     (16) "Person" 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.
     (17) "Public resources" means water, fish and wildlife, and in addition shall mean capital improvements of the state or its political subdivisions.
     (18) "Small forest landowner" has the same meaning as defined in section 10 of this act.
     (19) "Timber" means forest trees, standing or down, of a commercial species, including Christmas trees. However, "timber" does not include Christmas trees that are cultivated by agricultural methods, as that term is defined in RCW 84.33.035.
     (((19))) (20) "Timber owner" 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.
     (((20))) (21) "Board" means the forest practices board created in RCW 76.09.030.
     (((21))) (22) "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.
     (((22))) (23) "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.

NEW SECTION.  Sec. 3   A new section is added to chapter 76.09 RCW to read as follows:
     (1) The board must adopt rules relating to road maintenance and abandonment plans that are substantially consistent with the recommendations contained in the forests and fish report, except for the following differences:
     (a) A forest landowner who owns a total of eighty acres or less of forest land in Washington is not required to submit a road maintenance and abandonment plan for any parcels of land that are twenty contiguous acres or less in area; and
     (b) A landowner who qualifies as a small forest landowner, but who does not qualify under (a) of this subsection, is only required to submit a checklist road maintenance and abandonment plan with the abbreviated content requirements provided for in subsection (3) of this section, and is not required to comply with annual reporting and review requirements.
     (2) The department must provide a landowner who is either exempted from submitting a road maintenance and abandonment plan under subsection (1)(a) of this section, or who qualifies for a checklist road maintenance and abandonment plan under subsection (1)(b) of this section, with an educational brochure outlining road maintenance standards and requirements. In addition, the department must develop a series of nonmandatory educational workshops on the rules associated with road construction and maintenance.
     (3) A landowner who qualifies for a checklist road maintenance and abandonment plan under subsection (1)(b) of this section is only required to submit a checklist, designed by the department in consultation with the small forest landowner advisory committee created in RCW 76.13.110, that confirms that the landowner has read the educational brochure provided under subsection (2) of this section and is applying it to the management of the landowner's forest roads. A landowner who qualifies for the checklist road maintenance and abandonment plan is not required to submit the checklist before the time that he or she submits a forest practices application for forest lands either covered by the checklist, or that are contiguous to the forest land that contains the forest practices application. The department may encourage and accept checklists prior to the time that they are due.
     (4) The department must monitor the extent of checklist road maintenance and abandonment plan submissions and rates of compliance with rules relating to forest roads, and report its findings to the appropriate committees of the legislature by December 31, 2008, and December 31, 2013. The legislative reports must measure the success of the checklist road maintenance and abandonment plan approach and make any suggestions for adjustments that are necessary to accomplish the goal of having all checklists submitted, and the corresponding road maintenance completed, by June 30, 2016. Reports conducted under this section should be linked to the program evaluations conducted under section 6(7) of this act.
     (5) The board shall adopt emergency rules under RCW 34.05.090 by October 31, 2003, to implement this section. The emergency rules shall remain in effect until permanent rules can be adopted. The forest practices rules that relate to road maintenance and abandonment plans shall remain in effect as they existed on the effective date of this section until emergency rules have been adopted under this section.
     (6) This section is only intended to relate to the board's duties as they relate to the road maintenance and abandonment plan element of the forests and fish report. Nothing in this section alters any forest landowner's duties and responsibilities under any other section of the forest practices rules, or any other state law or rule.

Sec. 4   RCW 76.09.055 and 2000 c 11 s 4 are each amended to read as follows:
     (1) The legislature finds that the declines of fish stocks throughout much of the state require 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)(i) That the rules adopted under this section may remain in effect until permanent rules are adopted, or until June 30, 2001, whichever is sooner; (ii) that the rules adopted under sections 3(5) and 9 of this act must remain in effect until permanent rules are adopted; (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 consistent with this section, 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. Except as provided in sections 3 and 9 of this act, the forest practices board may only adopt recommendations contained in the forests and fish report as emergency rules under this section.

Sec. 5   RCW 76.09.390 and 1999 sp.s. c 4 s 707 are each amended to read as follows:
     (1) Except as provided in subsection (2) of this section, 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 RCW 76.09.370, 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.
     (2) Subsection (1) of this section does not apply to road maintenance and abandonment plans.

NEW SECTION.  Sec. 6   A new section is added to chapter 76.13 RCW to read as follows:
     (1) The legislature finds that many small forest landowners are not in the financial position to adequately fund all of the fish blockage removal projects that are both critical to achieving the goals set forth in chapter 76.09 RCW, and required by the forest practices rules issued pursuant to the forests and fish report. The legislature further finds that a state-led cost-sharing program is necessary to assist small forest landowners with removing and replacing culverts and other man-made fish blockages that are present on their land and to help achieve the goals of the forests and fish report.
     (2) The small forest landowner office must, if sufficient funding is available, establish in cooperation with the department of fish and wildlife a program designed to assist small forest landowners with repairing or removing fish blockages and assist lead entities in acquiring the data necessary to fill any gaps in fish blockage information. Lead entities shall use methods, protocols, and formulas for data gathering and prioritizing that are provided by the department of fish and wildlife.
     (3) The small forest landowner office must actively seek out funding for the program authorized in this section. Funding may be obtained from state, federal, or private sources. Costs of a fish blockage removal project that are not covered by the program are the responsibility of the landowner.
     (4) In implementing the program established in this section, the small forest landowner office must seek to provide the highest proportion of public funding available for the removal of a particular fish blockage.
     (5)(a) The department, using ranked inventory information provided by the department of fish and wildlife as delineated in section 8 of this act, must establish an order for the funding of fish blockage removals on property owned by small forest landowners that ensures that funding is provided first to the known fish blockages existing on forest land owned by small forest landowners that cause the greatest harm to public resources.
     (b) As the department of natural resources collects information about the presence of fish blockages from submitted road maintenance and abandonment plans, it must share this information with the department of fish and wildlife and the technical advisory groups established in RCW 77.85.070. If the addition of the information collected in the road maintenance and abandonment plans, or any other changes to the scientific instruments described in section 8 of this act, alters the analysis conducted under section 8 of this act, the department of natural resources must alter the funding order appropriately to reflect the new information.
     (6) The department of natural resources may accept commitments from small forest landowners that they will participate in the program to remove fish blockages from their land at any time, regardless of the funding order given to the blockages on a particular landowner's property.
     (7) The program established in this section must be evaluated by the department of natural resources by December 31, 2008, and December 31, 2013. The evaluations must measure the success of the program and identify any adjustments to the program that may be necessary. Evaluations conducted under this section should be linked to compliance monitoring under section 3(4) of this act. The results of the evaluations must be submitted to the appropriate committees of the legislature.
     (8) To the extent possible, all efforts to correct man-made fish blockages in this section should be conducted within the context of any statewide culvert strategies.

NEW SECTION.  Sec. 7   A new section is added to chapter 76.09 RCW to read as follows:
     The department may not disapprove a forest practices application filed by a small forest landowner solely on the basis that fish blockages have not been removed if the small forest landowner filing the application has committed to participate in the program established in section 6 of this act for all fish blockages existing on the block of forest land covered by the forest practices application, and:
     (1) The fish blockages existing on the block of forest land covered by the forest practices application are lower on the funding order list established for the program than the current projects being funded by the program; or
     (2) Sufficient funding is not available for the program to share the costs of fish blockage removal with the small forest landowner on the block of forest land covered by the forest practice application.

NEW SECTION.  Sec. 8   A new section is added to chapter 77.12 RCW to read as follows:
     In coordination with the department of natural resources, the department must, if sufficient funding is available, establish a ranked inventory of fish barriers on land owned by small forest landowners based on the principle that culverts blocking the most fish habitat or causing actual damages to public resources would be replaced first. The department shall first gather and synthesize all available existing information about the locations and impacts of fish blockages in Washington. This information must include, but not be limited to, the most recently available limiting factors analysis conducted pursuant to RCW 77.85.060(2), the stock status information contained in the department of fish and wildlife salmonid stock inventory (SASSI), the salmon and steelhead habitat inventory and assessment project (SSHIAP), and any comparable science-based assessment when available. The inventory of fish barriers must be kept current and at a minimum be updated by the beginning of each calendar year.

NEW SECTION.  Sec. 9   A new section is added to chapter 76.09 RCW to read as follows:
     (1) The legislature finds that the definition of "forest road" as it exists in the Washington Administrative Code on the effective date of this section, and the definition of "forest land" as it exists in RCW 76.09.020 on the effective date of this section, are unnecessarily broad as they apply to the road maintenance and abandonment plan element of the forest practices rules. Therefore, the board must:
     (a) Adopt by rule a new definition of the term "forest road" at least as that term affects road maintenance and abandonment plans. In redefining the term "forest road," the board must ensure a more narrow interpretation than the current definition and expressly exclude residential driveways that are not used for forest practices from the definition;
     (b) Clarify by rule that existing forest roads must be maintained only to the extent necessary to prevent potential or actual damage to public resources; and
     (c) Clarify by rule the effect of the following terms used in the statutory definition of "forest land," at least as the terms apply to road maintenance and abandonment plans: (i) "Capable of supporting a merchantable stand of timber"; (ii) "being actively used"; and (iii) "incompatible with timber growing." In clarifying these terms, the board must ensure a more narrow interpretation than the current definitions provide and expressly exclude agricultural crop lands, pastures, and orchards.
     (2) The board must adopt emergency rules under RCW 34.05.090 by October 31, 2003, to implement this section. The emergency rules stay in effect until permanent rules are adopted.

NEW SECTION.  Sec. 10   A new section is added to chapter 76.09 RCW to read as follows:
     (1) A small forest landowner means a forest landowner meeting all of the following characteristics: (a) An entity that has harvested from its own lands in this state an average timber volume of two million board feet in a calendar year during the three years prior to the year of submitting a checklist road maintenance and abandonment plan as described in section 3 of this act; and (b) an entity that certifies at the time of submitting a checklist road maintenance and abandonment plan that it does not expect to harvest from its own lands in this state more than an average timber volume of two million board feet in a calendar year during the ten years following checklist submission. If a landowner's prior three-year average harvest exceeds the limit of two million board feet in a calendar year, or the landowner expects to exceed this limit during the ten years following checklist submission, and that landowner establishes to the department's 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 must be deemed a small forest landowner.
     (2) For purposes of determining whether a person qualifies as a small forest landowner, the department, with assistance from the small forest landowner office created in RCW 76.13.110, shall evaluate the landowner under this definition as of the date that the checklist road maintenance and abandonment plan is submitted. A small forest landowner can include an individual, partnership, corporate, or other nongovernmental legal entity.