BILL REQ. #:  H-3729.1 

Prefiled 12/07/07. Read first time 01/14/08.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to forestry operations adjacent to residences; amending RCW 76.09.020, 76.09.050, and 76.09.070; adding new sections to chapter 76.09 RCW; adding a new section to chapter 84.33 RCW; and creating new sections.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that the forest products industry is historically and currently a vital aspect of the state's economy and quality of life. Working forest lands not only create direct and indirect jobs and economic growth in rural communities, but they maintain vast tracts of land in a forested and undeveloped state that can provide sustenance to a wide variety of biologic life. With the historic accord known as the forest and fish law now in place, working forest lands have taken the next steps that help ensure that the state will enjoy a richness in the health of its aquatic habitat and provide endangered salmonid species with a significant chance for survival.
     (2) The legislature further finds that working forestry is not the only legitimate use of rural land. Washington has experienced intensive population growth, and the population will continue to grow at unprecedented rates into the future. As the population grows, the demands of the state's citizens will include land for housing. These demands have already brought residential development into areas traditionally used for forestry and has lead to a historic loss of working lands across Washington's landscape.
     (3) It is not the intent of this act to favor one land use over the other, but to recognize legitimate competing interests for a finite amount of land. The legislature finds that as working lands find themselves as neighbors to more and more private residences, conflicts between the two land uses will continue to escalate. If simple steps are taken by these new neighbors, conflict can be reduced to a minimum, working forests can continue to thrive and provide the myriad of benefits it is known to produce, and residential owners can be ensured the peaceful enjoyment of their home that is the right of every property owner and inherent in the American dream.

Sec. 2   RCW 76.09.020 and 2003 c 311 s 3 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (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) "Fish passage barrier" means any artificial instream structure that impedes the free passage of fish.
     (9) "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. As it applies to the operation of the road maintenance and abandonment plan element of the forest practices rules on small forest landowners, the term "forest land" excludes:
     (a) Residential home sites, which may include up to five acres; and
     (b) Cropfields, orchards, vineyards, pastures, feedlots, fish pens, and the land on which appurtenances necessary to the production, preparation, or sale of crops, fruit, dairy products, fish, and livestock exist.
     (10) "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. However, 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.
     (11) "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.
     (12) "Forest practices rules" means any rules adopted pursuant to RCW 76.09.040.
     (13) "Forest road," as it applies to the operation of the road maintenance and abandonment plan element of the forest practices rules on small forest landowners, means a road or road segment that crosses land that meets the definition of forest land, but excludes residential access roads.
     (14) "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.
     (15) "Forests and fish report" means the forests and fish report to the board dated April 29, 1999.
     (16) "Application" means the application required pursuant to RCW 76.09.050.
     (17) "Operator" means any person engaging in forest practices except an employee with wages as his or her sole compensation.
     (18) "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.
     (19) "Public resources" means water, fish and wildlife, and in addition shall mean capital improvements of the state or its political subdivisions.
     (20) "Residential interface forestry zone" means forest land that, at the time a forest practice is conducted, is located within five hundred yards of a shared common border with an individual parcel of land five acres in size or smaller that contains a residential structure not owned by the same person who owns the adjacent forest land.
     (21) "Small forest landowner" has the same meaning as defined in RCW 76.09.450.
     (((21))) (22) "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.
     (((22))) (23) "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.
     (((23))) (24) "Board" means the forest practices board created in RCW 76.09.030.
     (((24))) (25) "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.
     (((25))) (26) "Unconfined avulsing stream" means generally fifth order or larger waters that experience abrupt shifts in channel location, creating a complex floodplain 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.

Sec. 3   RCW 76.09.050 and 2005 c 146 s 1003 are each amended to read as follows:
     (1) The board shall establish by rule which forest practices shall be included within each of the following classes:
     Class I: Minimal or specific forest practices that have no direct potential for damaging a public resource and that may be conducted without submitting an application or a notification except that when the regulating authority is transferred to a local governmental entity, those Class I forest practices that involve timber harvesting or road construction within "urban growth areas," designated pursuant to chapter 36.70A RCW, are processed as Class IV forest practices, but are not subject to environmental review under chapter 43.21C RCW;
     Class II: Forest practices which have a less than ordinary potential for damaging a public resource that may be conducted without submitting an application and may, except for forest land located in a residential interface forestry zone, begin five calendar days, or such lesser time as the department may determine, after written notification by the operator, in the manner, content, and form as prescribed by the department, is received by the department. ((However, the)) Class II forest practices may not be conducted within a residential interface forestry zone until thirty days have passed since the forest landowner provided notification to the department and to all residential landowners located adjacent to the residential interface forestry zone via United States mail or hand delivery. Work inside or outside of a residential interface forestry zone may not begin until all forest practice fees required under RCW 76.09.065 have been received by the department. Class II shall not include forest practices:
     (a) On lands platted after January 1, 1960, as provided in chapter 58.17 RCW or on lands that have or are being converted to another use;
     (b) Which require approvals under the provisions of the hydraulics act, RCW 77.55.021;
     (c) Within "shorelines of the state" as defined in RCW 90.58.030;
     (d) Excluded from Class II by the board; or
     (e) Including timber harvesting or road construction within "urban growth areas," designated pursuant to chapter 36.70A RCW, which are Class IV;
     Class III: Forest practices other than those contained in Class I, II, or IV. A Class III application must be approved or disapproved by the department within thirty calendar days from the date the department receives the application. However, the applicant may not begin work on that forest practice until all forest practice fees required under RCW 76.09.065 have been received by the department, and for Class III forest practices located within a residential interface forestry zone only, until thirty days have passed since the forest landowner provided notification of the department's approval to all residential landowners located adjacent to the residential interface forestry zone via United States mail or hand delivery;
     Class IV: Forest practices other than those contained in Class I or II: (a) On lands platted after January 1, 1960, as provided in chapter 58.17 RCW, (b) on lands that have or are being converted to another use, (c) on lands which, pursuant to RCW 76.09.070 as now or hereafter amended, are not to be reforested because of the likelihood of future conversion to urban development, (d) involving timber harvesting or road construction on lands that are contained within "urban growth areas," designated pursuant to chapter 36.70A RCW, except where the forest landowner provides: (i) A written statement of intent signed by the forest landowner not to convert to a use other than commercial forest product operations for ten years, accompanied by either a written forest management plan acceptable to the department or documentation that the land is enrolled under the provisions of chapter 84.33 RCW; or (ii) a conversion option harvest plan approved by the local governmental entity and submitted to the department as part of the application, and/or (e) which have a potential for a substantial impact on the environment and therefore require an evaluation by the department as to whether or not a detailed statement must be prepared pursuant to the state environmental policy act, chapter 43.21C RCW. Such evaluation shall be made within ten days from the date the department receives the application: PROVIDED, That nothing herein shall be construed to prevent any local or regional governmental entity from determining that a detailed statement must be prepared for an action pursuant to a Class IV forest practice taken by that governmental entity concerning the land on which forest practices will be conducted. A Class IV application must be approved or disapproved by the department within thirty calendar days from the date the department receives the application, unless the department determines that a detailed statement must be made, in which case the application must be approved or disapproved by the department within sixty calendar days from the date the department receives the application, unless the commissioner of public lands, through the promulgation of a formal order, determines that the process cannot be completed within such period. However, the applicant may not begin work on that forest practice until all forest practice fees required under RCW 76.09.065 have been received by the department, and for Class IV forest practices located within a residential interface forestry zone only, until thirty days have passed since the forest landowner provided notification of the department's approval to all residential landowners located adjacent to the residential interface forestry zone via United States mail or hand delivery.
     Forest practices under Classes I, II, and III are exempt from the requirements for preparation of a detailed statement under the state environmental policy act.
     (2) Except for those forest practices being regulated by local governmental entities as provided elsewhere in this chapter, no Class II, Class III, or Class IV forest practice shall be commenced or continued after January 1, 1975, unless the department has received a notification with regard to a Class II forest practice or approved an application with regard to a Class III or Class IV forest practice containing all information required by RCW 76.09.060 as now or hereafter amended. However, in the event forest practices regulations necessary for the scheduled implementation of this chapter and RCW 90.48.420 have not been adopted in time to meet such schedules, the department shall have the authority to regulate forest practices and approve applications on such terms and conditions consistent with this chapter and RCW 90.48.420 and the purposes and policies of RCW 76.09.010 until applicable forest practices regulations are in effect.
     (3) Except for those forest practices being regulated by local governmental entities as provided elsewhere in this chapter, if a notification or application is delivered in person to the department by the operator or the operator's agent, the department shall immediately provide a dated receipt thereof and, for applications affecting a residential interface forestry zone only, mail notification of the application to all residential landowners located adjacent to the residential interface forestry zone via United States mail or hand delivery. In all other cases, the department shall immediately mail a dated receipt to the operator and, for applications affecting a residential interface forestry zone only, mail notification of the application to all residential landowners located adjacent to the residential interface forestry zone via United States mail or hand delivery.
     (4) Except for those forest practices being regulated by local governmental entities as provided elsewhere in this chapter or occurring within a residential interface forestry zone, forest practices shall be conducted in accordance with the forest practices regulations, orders and directives as authorized by this chapter or the forest practices regulations, and the terms and conditions of any approved applications. For forest practices occurring within a residential interface forestry zone, any regulations, orders, or directives promulgated by the local government also apply to the forest practice. Except when water quality will be affected, in instances where the terms of this chapter are inconsistent with locally promulgated regulations, the forest practice in question is governed by the local regulation.
     (5) Except for those forest practices being regulated by local governmental entities as provided elsewhere in this chapter, the department of natural resources shall notify the applicant in writing of either its approval of the application or its disapproval of the application and the specific manner in which the application fails to comply with the provisions of this section or with the forest practices regulations. Except as provided otherwise in this section, if the department fails to either approve or disapprove an application or any portion thereof within the applicable time limit, the application shall be deemed approved and the operation may be commenced: PROVIDED, That this provision shall not apply to applications which are neither approved nor disapproved pursuant to the provisions of subsection (7) of this section: PROVIDED, FURTHER, That if seasonal field conditions prevent the department from being able to properly evaluate the application, the department may issue an approval conditional upon further review within sixty days: PROVIDED, FURTHER, That the department shall have until April 1, 1975, to approve or disapprove an application involving forest practices allowed to continue to April 1, 1975, under the provisions of subsection (2) of this section. Upon receipt of any notification or any satisfactorily completed application the department shall in any event no later than two business days after such receipt transmit a copy to the departments of ecology and fish and wildlife, and to the county, city, or town in whose jurisdiction the forest practice is to be commenced. Any comments by such agencies shall be directed to the department of natural resources.
     (6) For those forest practices regulated by the board and the department, if the county, city, or town believes that an application is inconsistent with this chapter, the forest practices regulations, or any local authority consistent with RCW 76.09.240 as now or hereafter amended, it may so notify the department and the applicant, specifying its objections.
     (7) For those forest practices regulated by the board and the department, the department shall not approve portions of applications to which a county, city, or town objects if:
     (a) The department receives written notice from the county, city, or town of such objections within fourteen business days from the time of transmittal of the application to the county, city, or town, or one day before the department acts on the application, whichever is later; and
     (b) The objections relate to lands either:
     (i) Platted after January 1, 1960, as provided in chapter 58.17 RCW; or
     (ii) On lands that have or are being converted to another use.
     The department shall either disapprove those portions of such application or appeal the county, city, or town objections to the appeals board. If the objections related to subparagraphs (b)(i) and (ii) of this subsection are based on local authority consistent with RCW 76.09.240 as now or hereafter amended, the department shall disapprove the application until such time as the county, city, or town consents to its approval or such disapproval is reversed on appeal. The applicant shall be a party to all department appeals of county, city, or town objections. Unless the county, city, or town either consents or has waived its rights under this subsection, the department shall not approve portions of an application affecting such lands until the minimum time for county, city, or town objections has expired.
     (8) For those forest practices regulated by the board and the department, in addition to any rights under the above paragraph, the county, city, or town may appeal any department approval of an application with respect to any lands within its jurisdiction. The appeals board may suspend the department's approval in whole or in part pending such appeal where there exists potential for immediate and material damage to a public resource.
     (9) For those forest practices regulated by the board and the department, appeals under this section shall be made to the appeals board in the manner and time provided in RCW 76.09.220(8). In such appeals there shall be no presumption of correctness of either the county, city, or town or the department position.
     (10) For those forest practices regulated by the board and the department, the department shall, within four business days notify the county, city, or town of all notifications, approvals, and disapprovals of an application affecting lands within the county, city, or town, except to the extent the county, city, or town has waived its right to such notice.
     (11) For those forest practices regulated by the board and the department, a county, city, or town may waive in whole or in part its rights under this section, and may withdraw or modify any such waiver, at any time by written notice to the department.
     (12) Notwithstanding subsections (2) through (5) of this section, forest practices applications or notifications are not required for exotic insect and disease control operations conducted in accordance with RCW 76.09.060(8) where eradication can reasonably be expected.

NEW SECTION.  Sec. 4   A new section is added to chapter 76.09 RCW to read as follows:
     The intent of the residential interface forestry zone notification requirements in RCW 76.09.050 is for residential landowners who are potentially affected by a forest practice to have notice and time to assess the impact of the forest practice on their land, notify all affected parties of any potential hazards, and provide an opportunity for the landowner to express his or her concerns. The department shall provide a forum by which affected residential landowners may express their concerns, and serve as an intermediary between the residential landowner and the forest landowner in an attempt to ease the concerns of both parties.

Sec. 5   RCW 76.09.070 and 2007 c 106 s 4 are each amended to read as follows:
     (1) After the completion of a logging operation, satisfactory reforestation, as defined by the rules and regulations promulgated by the board, shall be completed within three years except for land located within a residential interface forestry zone, where satisfactory reforestation must be completed within one year. However, for land located either inside or outside of a residential interface forestry zone:
     (a) A longer period may be authorized if seed or seedlings are not available;
     (b) A period of up to five years may be allowed where a natural regeneration plan is approved by the department; and
     (c) The department may identify low-productivity lands on which it may allow for a period of up to ten years for natural regeneration.
     (2)(a) Upon the completion of a reforestation operation a report on such operation shall be filed with the department of natural resources.
     (b) Within twelve months of receipt of such a report the department shall inspect the reforestation operation, and shall determine either that the reforestation operation has been properly completed or that further reforestation and inspection is necessary.
     (3) Satisfactory reforestation is the obligation of the owner of the land as defined by forest practices regulations, except the owner of perpetual rights to cut timber owned separately from the land is responsible for satisfactory reforestation. The reforestation obligation shall become the obligation of a new owner if the land or perpetual timber rights are sold or otherwise transferred.
     (4)(a) Prior to the sale or transfer of land or perpetual timber rights subject to a reforestation obligation or to a notice of conversion to a nonforestry use issued under RCW 76.09.060, the seller shall notify the buyer of the existence and nature of the obligation and the buyer shall sign a notice indicating the buyer's knowledge of all obligations.
     (b) 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.
     (c) If the seller fails to notify the buyer about the reforestation obligation or the notice of conversion to a nonforestry use, the seller shall pay the buyer's costs related to reforestation or mitigation under RCW 76.09.470, including all legal costs which include reasonable attorneys' fees, incurred by the buyer in enforcing the reforestation obligation or mitigation requirements against the seller.
     (d) 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 reforestation or mitigation, that the seller did not notify the buyer of the reforestation obligation or potential mitigation requirements prior to sale.
     (5) The forest practices regulations may provide alternatives to or limitations on the applicability of reforestation requirements with respect to forest lands being converted in whole or in part to another use which is compatible with timber growing. The forest practices regulations may identify classifications and/or areas of forest land that have the likelihood of future conversion to urban development within a ten year period. The reforestation requirements may be modified or eliminated on such lands. However, such identification and/or such conversion to urban development must be consistent with any local or regional land use plans or ordinances.

NEW SECTION.  Sec. 6   A new section is added to chapter 76.09 RCW to read as follows:
     (1) Except as otherwise provided in this section, and in addition to any other applicable requirements of this chapter, any forest practices conducted within a residential interface forestry zone may only be approved by the department or otherwise considered lawful if a one hundred foot buffer of existing vegetation is maintained in the residential interface forestry zone forest along any property lines shared with an individual parcel of land five acres in size or smaller that contains a residential structure not owned by the same person who owns the adjacent forest land.
     (2) The forest landowner must leave the first fifty feet from the shared property line in an undisturbed state. The area of the buffer located more than fifty feet, but less than seventy-five feet, from the shared property line may only be harvested to fifty percent of the preexisting forest density, and the area of the buffer located more than seventy-five feet from the shared property line may only be harvested to seventy-five percent of the preexisting forest density.
     (3) The department may waive or modify the application of this section for a particular forest landowner if the buffer distances required by this section would affect more than twenty-five percent of the forest landowner's contiguous ownership. All adjacent residential landowners must be provided with notice and an opportunity to comment before the department issues any waiver or modification of the requirements of this section.

NEW SECTION.  Sec. 7   A new section is added to chapter 76.09 RCW to read as follows:
     In addition to any other applicable requirements of this chapter, the following requirements apply to any forest practices conducted within a residential interface forestry zone forest:
     (1) All work envisioned on the forest practices notification or application must be completed as quickly and efficiently as reasonably possible. The application or notification must include a timeline on which the work will be completed. A violation of the timeline represents a violation of the forest practices application and this chapter.
     (2) Forestry operations may only occur between the times of 7:00 a.m. and 5:00 p.m. on weekdays, and 9:00 a.m. and 5:00 p.m. on Saturdays, Sundays, and legal holidays recognized in RCW 1.16.050.
     (3) If burn piles are to be used to clear the land, all burn piles must be located on the farthest, safe part of the harvest area from the shared property line, and must be preceded with notification via United States mail or hand delivery of potential burn days and times to all residential property owners within a one mile area.

NEW SECTION.  Sec. 8   A new section is added to chapter 84.33 RCW to read as follows:
     (1) The appraised value of any timber required to be left standing in a residential interface forestry zone buffer by section 6 of this act, that would otherwise be eligible for harvest by the landowner, is available as a credit against taxes due under this chapter for the harvest triggering the provisions of section 6 of this act.
     (2) The amount of credit allowed under this section may not exceed the amount of taxes due under this chapter.

NEW SECTION.  Sec. 9   The code reviser is directed to put the defined terms in RCW 76.09.020 in alphabetical order.