BILL REQ. #:  S-0801.2 

Read first time 02/05/2007.   Referred to Committee on Natural Resources, Ocean & Recreation.

     AN ACT Relating to the conversion of forest land to nonforestry uses; amending RCW 76.09.060, 76.09.070, 76.09.065, 76.09.067, and 76.09.240; and adding new sections to chapter 76.09 RCW.

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

Sec. 1   RCW 76.09.060 and 2005 c 274 s 357 are each amended to read as follows:
     The following shall apply to those forest practices administered and enforced by the department and for which the board shall promulgate regulations as provided in this chapter:
     (1) The department shall prescribe the form and contents of the notification and application. The forest practices rules shall specify by whom and under what conditions the notification and application shall be signed or otherwise certified as acceptable. The application or notification shall be delivered in person to the department, sent by first class mail to the department or electronically filed in a form defined by the department. The form for electronic filing shall be readily convertible to a paper copy, which shall be available to the public pursuant to chapter 42.56 RCW. The information required may include, but is not limited to:
     (a) Name and address of the forest landowner, timber owner, and operator;
     (b) Description of the proposed forest practice or practices to be conducted;
     (c) Legal description and tax parcel identification numbers of the land on which the forest practices are to be conducted;
     (d) Planimetric and topographic maps showing location and size of all lakes and streams and other public waters in and immediately adjacent to the operating area and showing all existing and proposed roads and major tractor roads;
     (e) Description of the silvicultural, harvesting, or other forest practice methods to be used, including the type of equipment to be used and materials to be applied;
     (f) Proposed plan for reforestation and for any revegetation necessary to reduce erosion potential from roadsides and yarding roads, as required by the forest practices rules;
     (g) Soil, geological, and hydrological data with respect to forest practices;
     (h) The expected dates of commencement and completion of all forest practices specified in the application;
     (i) Provisions for continuing maintenance of roads and other construction or other measures necessary to afford protection to public resources;
     (j) An affirmation that the statements contained in the notification or application are true; and
     (k) All necessary application or notification fees.
     (2) Long range plans may be submitted to the department for review and consultation.
     (3) The application for a forest practice or the notification of a ((Class II)) forest practice is subject to the ((three-year)) reforestation requirement of RCW 76.09.070.
     (a) If the application states that any ((such)) land will be or is intended to be ((so)) converted:
     (i) The reforestation requirements of this chapter and of the forest practices rules shall not apply if the land is in fact ((so)) converted unless applicable alternatives or limitations are provided in forest practices rules issued under RCW 76.09.070 ((as now or hereafter amended));
     (ii) Completion of such forest practice operations shall be deemed conversion of the lands to another use for purposes of chapters 84.33 and 84.34 RCW unless the conversion is to a use permitted under a current use tax agreement permitted under chapter 84.34 RCW;
     (iii) The forest practices described in the application are subject to applicable county, city, town, and regional governmental authority permitted under RCW 76.09.240 ((as now or hereafter amended)) as well as the forest practices rules.
     (b) Except as provided elsewhere in this section, if the landowner harvests without an approved application or notification or the landowner does not state that any land covered by the application or notification will be or is intended to be ((so)) converted((:
     (i) For six years after the date of the application the county, city, town, and regional governmental entities shall deny any or all applications for permits or approvals, including building permits and subdivision approvals, relating to nonforestry uses of land subject to the application;
     (A) The department shall submit to the local governmental entity a copy of the statement of a forest landowner's intention not to convert which shall represent a recognition by the landowner that the six-year moratorium shall be imposed and shall preclude the landowner's ability to obtain development permits while the moratorium is in place. This statement shall be filed by the local governmental entity with the county recording officer, who shall record the documents as provided in chapter 65.04 RCW, except that lands designated as forest lands of long-term commercial significance under chapter 36.70A RCW shall not be recorded due to the low likelihood of conversion. Not recording the statement of a forest landowner's conversion intention shall not be construed to mean the moratorium is not in effect.
     (B) The department shall collect the recording fee and reimburse the local governmental entity for the cost of recording the application.
     (C) When harvesting takes place without an application, the local governmental entity shall impose the six-year moratorium provided in (b)(i) of this subsection from the date the unpermitted harvesting was discovered by the department or the local governmental entity.
     (D) The local governmental entity shall develop a process for lifting the six-year moratorium, which shall include public notification, and procedures for appeals and public hearings.
     (E) The local governmental entity may develop an administrative process for lifting or waiving the six-year moratorium for the purposes of constructing a single-family residence or outbuildings, or both, on a legal lot and building site. Lifting or waiving of the six-year moratorium is subject to compliance with all local ordinances.
     (F) The six-year moratorium shall not be imposed on a forest practices application that contains a conversion option harvest plan approved by the local governmental entity unless the forest practice was not in compliance with the approved forest practice permit. Where not in compliance with the conversion option harvest plan, the six-year moratorium shall be imposed from the date the application was approved by the department or the local governmental entity;
     (ii))), and the department or the county, city, town, or regional governmental entity becomes aware of conversion activities to a use other than commercial timber operations, as that term is defined in RCW 76.09.020, then the department shall send to the department of ecology and the appropriate county, city, town, and regional governmental entities the following documents:
     (i) A notice of a conversion to nonforestry use;
     (ii) A copy of the applicable forest practices application or notification, if any; and
     (iii) Copies of any applicable outstanding final orders or decisions issued by the department related to the forest practices application or notification.
     (c) Failure to comply with the reforestation requirements contained in any final order or decision shall constitute a removal of designation under the provisions of RCW 84.33.140, and a change of use under the provisions of RCW 84.34.080, and, if applicable, shall subject such lands to the payments and/or penalties resulting from such removals or changes((; and)).
     (((iii))) (d) Conversion to a use other than commercial forest product operations within six years after approval of the forest practices application or notification without the consent of the county, city, or town shall constitute a violation of each of the county, municipal city, town, and regional authorities to which the forest practice operations would have been subject if the application had ((so)) stated an intent to convert.
     (((c))) (e) Land that is the subject of a notice of conversion to a nonforestry use produced by the department and sent to the department of ecology and a local government under this subsection is subject to the development prohibition and conditions provided in section 2 of this act.
     (f) Landowners who have not stated an intent to convert the land covered by an application or notification and who decide to convert the land to a nonforestry use within six years of receiving an approved application or notification must do so in a manner consistent with section 3 of this act.
     (g) The application or notification ((shall be signed)) must include a statement requiring an acknowledgment by the forest landowner ((and accompanied by a statement signed by the forest landowner indicating)) of his or her intent with respect to conversion and acknowledging that he or she is familiar with the effects of this subsection.
     (4) Whenever an approved application authorizes a forest practice which, because of soil condition, proximity to a water course or other unusual factor, has a potential for causing material damage to a public resource, as determined by the department, the applicant shall, when requested on the approved application, notify the department two days before the commencement of actual operations.
     (5) Before the operator commences any forest practice in a manner or to an extent significantly different from that described in a previously approved application or notification, there shall be submitted to the department a new application or notification form in the manner set forth in this section.
     (6) Except as provided in RCW 76.09.350(4), the notification to or the approval given by the department to an application to conduct a forest practice shall be effective for a term of two years from the date of approval or notification and shall not be renewed unless a new application is filed and approved or a new notification has been filed. At the option of the applicant, an application or notification may be submitted to cover a single forest practice or a number of forest practices within reasonable geographic or political boundaries as specified by the department. An application or notification that covers more than one forest practice may have an effective term of more than two years. The board shall adopt rules that establish standards and procedures for approving an application or notification that has an effective term of more than two years. Such rules shall include extended time periods for application or notification approval or disapproval. On an approved application with a term of more than two years, the applicant shall inform the department before commencing operations.
     (7) Notwithstanding any other provision of this section, no prior application or notification shall be required for any emergency forest practice necessitated by fire, flood, windstorm, earthquake, or other emergency as defined by the board, but the operator shall submit an application or notification, whichever is applicable, to the department within forty-eight hours after commencement of such practice or as required by local regulations.
     (8) Forest practices applications or notifications are not required for forest practices conducted to control exotic forest insect or disease outbreaks, when conducted by or under the direction of the department of agriculture in carrying out an order of the governor or director of the department of agriculture to implement pest control measures as authorized under chapter 17.24 RCW, and are not required when conducted by or under the direction of the department in carrying out emergency measures under a forest health emergency declaration by the commissioner of public lands as provided in RCW 76.06.130.
     (a) For the purposes of this subsection, exotic forest insect or disease has the same meaning as defined in RCW 76.06.020.
     (b) In order to minimize adverse impacts to public resources, control measures must be based on integrated pest management, as defined in RCW 17.15.010, and must follow forest practices rules relating to road construction and maintenance, timber harvest, and forest chemicals, to the extent possible without compromising control objectives.
     (c) Agencies conducting or directing control efforts must provide advance notice to the appropriate regulatory staff of the department of the operations that would be subject to exemption from forest practices application or notification requirements.
     (d) When the appropriate regulatory staff of the department are notified under (c) of this subsection, they must consult with the landowner, interested agencies, and affected tribes, and assist the notifying agencies in the development of integrated pest management plans that comply with forest practices rules as required under (b) of this subsection.
     (e) Nothing under this subsection relieves agencies conducting or directing control efforts from requirements of the federal clean water act as administered by the department of ecology under RCW 90.48.260.
     (f) Forest lands where trees have been cut as part of an exotic forest insect or disease control effort under this subsection are subject to reforestation requirements under RCW 76.09.070.
     (g) The exemption from obtaining approved forest practices applications or notifications does not apply to forest practices conducted after the governor, the director of the department of agriculture, or the commissioner of public lands have declared that an emergency no longer exists because control objectives have been met, that there is no longer an imminent threat, or that there is no longer a good likelihood of control.

NEW SECTION.  Sec. 2   A new section is added to chapter 76.09 RCW to read as follows:
     If a county, city, town, or regional governmental entity receives a notice of conversion to nonforestry use by the department under RCW 76.09.060, then the county, city, town, or regional governmental entity must deny all applications for permits or approvals, including building permits and subdivision approvals, relating to nonforestry uses of the land that is the subject of the notification. The prohibition created by this section must be enforced by the county, city, town, or regional governmental entity:
     (1) For a period of six years from the approval date of the applicable forest practices application or notification or the date that the department was made aware of the harvest activities; or
     (2) Until the following activities are completed for the land that is the subject of the notice of conversion to a nonforestry use:
     (a) Full compliance with chapter 43.21C RCW, if applicable;
     (b) The department has notified the county, city, town, or regional governmental entity that the landowner has resolved any outstanding final orders or decisions issued by the department; and
     (c) A determination is made by the county, city, town, or regional governmental entity as to whether or not the condition of the land in question is in full compliance with local ordinances and regulations. If full compliance is not found, a mitigation plan to address violations of local ordinances or regulations must be required for the parcel in question by the county, city, town, or regional governmental entity. Required mitigation plans must be prepared by the landowner and approved by the county, city, town, or regional governmental entity. Once approved, the mitigation plan must be implemented by the landowner. Mitigation measures that may be required include, but are not limited to, revegetation requirements to plant and maintain trees of sufficient maturity and appropriate species composition to restore critical area and buffer function or to be in compliance with applicable local government regulations.

NEW SECTION.  Sec. 3   A new section is added to chapter 76.09 RCW to read as follows:
     (1) If a landowner who did not state an intent to convert his or her land to a nonforestry use decides to convert his or her land to a nonforestry use within six years of receiving an approved forest practices application or notification under this chapter, the landowner must:
     (a) Stop all forest practices activities on the parcels subject to the proposed land use conversion to a nonforestry use;
     (b) Contact the department of ecology and the applicable county, city, town, or regional governmental entity to begin the permitting process; and
     (c) Notify the department and withdraw any applicable applications or notifications or request a new application for conversion.
     (2) Upon being contacted by a landowner under this section, the county, city, town, or regional governmental entity must:
     (a) Notify the department and request from the department the status of any applicable forest practices applications, notifications, or final orders or decisions; and
     (b) Complete the following activities:
     (i) Require that the landowner be in full compliance with chapter 43.21C RCW, if applicable;
     (ii) Receive notification from the department that the landowner has resolved any outstanding final orders or decisions issued by the department; and
     (iii) Make a determination as to whether or not the condition of the land in question is in full compliance with local ordinances and regulations. If full compliance is not found, a mitigation plan to address violations of local ordinances or regulations must be required for the parcel in question by the county, city, town, or regional governmental entity. Required mitigation plans must be prepared by the landowner and approved by the county, city, town, or regional governmental entity. Once approved, the mitigation plan must be implemented by the landowner. Mitigation measures that may be required include, but are not limited to, revegetation requirements to plant and maintain trees of sufficient maturity and appropriate species composition to restore critical area and buffer function or to be in compliance with applicable local government regulations.

Sec. 4   RCW 76.09.070 and 1987 c 95 s 10 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((: PROVIDED, That: (1))). However:
     (a) A longer period may be authorized if seed or seedlings are not available; (((2)))
     (b) A period of up to five years may be allowed where a natural regeneration plan is approved by the department; and (((3)))
     (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 ((of reforestation obligation)) indicating the buyer's knowledge ((thereof)) 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 section 3 of this act, 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((: PROVIDED, That)). However, such identification and/or such conversion to urban development must be consistent with any local or regional land use plans or ordinances.

Sec. 5   RCW 76.09.065 and 2000 c 11 s 5 are each amended to read as follows:
     (1) ((Effective July 1, 1997, an)) Applicants shall pay an application fee ((and a recording fee, if applicable,)) at the time an application or notification is submitted to the department or to the local governmental entity as provided in this chapter.
     (2) For applications and notifications submitted to the department, the application fee shall be fifty dollars for class II, III, and IV forest practices applications or notifications relating to the commercial harvest of timber. ((However, the fee shall be five hundred dollars for class IV forest practices applications on lands being converted to other uses or on lands which are not to be reforested because of the likelihood of future conversion to urban development or on lands that are contained within "urban growth areas," designated pursuant to chapter 36.70A RCW, except the fee shall be fifty dollars on those lands where the forest landowner provides:
     (a) 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
     (b) A conversion option harvest plan approved by the local governmental entity and submitted to the department as part of the forest practices application.
All money collected from fees under this subsection shall be deposited in the state general fund.))
     (3) For applications submitted to the local governmental entity for timber harvest necessary to convert lands to a use other than commercial timber operations or for road construction necessary to convert lands to a use other than commercial timber operations, or for applications for forest practices within an urban growth area designated under chapter 36.70A RCW, the fee shall be ((five hundred dollars for class IV forest practices on lands being converted to other uses or lands that are contained within "urban growth areas," designated pursuant to chapter 36.70A RCW, except as otherwise provided in this section, unless a different fee is otherwise provided by the local governmental entity.
     (4) Recording fees shall be as provided in chapter 36.18 RCW)) established by the local government.
     (((5))) (4) An application fee under subsection (2) of this section shall be refunded or credited to the applicant if either the application or notification is disapproved by the department or the application or notification is withdrawn by the applicant due to restrictions imposed by the department.

Sec. 6   RCW 76.09.067 and 1998 c 100 s 1 are each amended to read as follows:
     Notwithstanding any other provision of this chapter to the contrary, for the purposes of RCW 76.09.050(1)((,)) and 76.09.060(((3) (b)(i)(A) and (c), and 76.09.065(2)(a))), where timber rights have been transferred by deed to a perpetual owner who is different from the forest landowner, the owner of perpetual timber rights may sign the forest practices application ((and the statement of intent not to convert for a set period of time)) or notification. The forest practices application is not complete until the holder of perpetual timber rights has submitted evidence to the department that the signed forest practices application ((and the signed statement of intent have)) or notification has been ((served on)) received by the forest landowner.

Sec. 7   RCW 76.09.240 and 2002 c 121 s 2 are each amended to read as follows:
     (1) By December 31, 2005, each county and each city shall adopt ordinances or promulgate regulations setting standards for those Class IV forest practices regulated by local government. The regulations shall: (a) Establish minimum standards for Class IV forest practices; (b) set forth necessary administrative provisions; and (c) establish procedures for the collection and administration of forest practices and recording fees as set forth in this chapter.
     (2) Class IV forest practices regulations shall be administered and enforced by the counties and cities that promulgate them.
     (3) The forest practices board shall continue to promulgate regulations and the department shall continue to administer and enforce the regulations promulgated by the board in each county and each city for all forest practices as provided in this chapter until such time as, in the opinion of the department, the county or city has promulgated forest practices regulations that meet the requirements as set forth in this section and that meet or exceed the standards set forth by the board in regulations in effect at the time the local regulations are adopted. Regulations promulgated by the county or city thereafter shall be reviewed in the usual manner set forth for county or city rules or ordinances. Amendments to local ordinances must meet or exceed the forest practices rules at the time the local ordinances are amended.
     (a) Department review of the initial regulations promulgated by a county or city shall take place upon written request by the county or city. The department, in consultation with the department of ecology, may approve or disapprove the regulations in whole or in part.
     (b) Until January 1, 2006, the department shall provide technical assistance to all counties or cities that have adopted forest practices regulations acceptable to the department and that have assumed regulatory authority over all Class IV forest practices within their jurisdiction.
     (c) Decisions by the department approving or disapproving the initial regulations promulgated by a county or city may be appealed to the forest practices appeals board, which has exclusive jurisdiction to review the department's approval or disapproval of regulations promulgated by counties and cities.
     (4) For those forest practices over which the board and the department maintain regulatory authority no county, city, municipality, or other local or regional governmental entity shall adopt or enforce any law, ordinance, or regulation pertaining to forest practices, except that to the extent otherwise permitted by law, such entities may exercise any:
     (a) Land use planning or zoning authority: PROVIDED, That exercise of such authority may regulate forest practices only: (i) Where the application submitted under RCW 76.09.060 as now or hereafter amended indicates that the lands have been or will be converted to a use other than commercial forest product production; or (ii) on lands which have been platted after January 1, 1960, as provided in chapter 58.17 RCW: PROVIDED, That no permit system solely for forest practices shall be allowed; that any additional or more stringent regulations shall not be inconsistent with the forest practices regulations enacted under this chapter; and such local regulations shall not unreasonably prevent timber harvesting;
     (b) Taxing powers;
     (c) Regulatory authority with respect to public health; and
     (d) Authority granted by chapter 90.58 RCW, the "Shoreline Management Act of 1971".
     (5) All counties and cities adopting or enforcing regulations or ordinances under this section shall include in the regulation or ordinance a requirement that an affidavit accompany every permit issued for forest land by that county or city associated with the conversion to a use other than commercial timber operation, as that term is defined in RCW 76.09.020, that certifies that the land in question is not or has not been subject to a notice of conversion to nonforestry uses under RCW 76.09.060 during the six-year period prior to the submission of a permit application.