BILL REQ. #: H-4037.1
| State of Washington | 62nd Legislature | 2012 Regular Session |
READ FIRST TIME 01/31/11.
AN ACT Relating to reform of the forest practices permitting system; amending RCW 76.09.040, 76.09.050, 76.09.150, 76.09.065, 76.09.460, 76.09.470, and 76.09.030; reenacting and amending RCW 76.09.060 and 76.09.020; adding new sections to chapter 77.55 RCW; adding a new section to chapter 76.09 RCW; adding a new section to chapter 43.30 RCW; adding a new section to chapter 43.21C RCW; creating new sections; providing a contingent effective date; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 77.55 RCW
to read as follows:
(1) The requirements of this chapter do not apply to any forest
practices hydraulic project, or to any activities that are associated
with such a project, upon incorporation of fish protection standards
adopted under this chapter into the forest practices rules and approval
of technical guidance as required under RCW 76.09.040, at which time
these projects are regulated under chapter 76.09 RCW.
(2) The department must continue to conduct regulatory and
enforcement activities under this chapter for forest practices
hydraulic projects until the forest practices board incorporates fish
protection standards adopted under this chapter into the forest
practices rules and approves technical guidance as required under RCW
76.09.040.
(3) By July 1, 2013, the department shall adopt rules establishing
the form and procedures for the concurrence review process consistent
with section 2 of this act. The concurrence review process must allow
the department up to thirty days to review forest practices hydraulic
projects meeting the criteria under section 2(2) (a) and (b) of this
act for consistency with fish protection standards.
(4) The department shall notify the department of natural resources
prior to beginning a rule-making process that may affect activities
regulated under chapter 76.09 RCW.
(5) The department shall act consistent with appendix M of the
forest and fish report, as the term "forests and fish report" is
defined in RCW 76.09.020, when modifying fish protection rules that may
affect activities regulated under chapter 76.09 RCW.
(6) The department may review and provide comments on any forest
practices application. Prior to commenting and whenever reasonably
practicable, the department shall communicate with the applicant
regarding the substance of the project.
(7) The department shall participate in effectiveness monitoring
for forest practices hydraulic projects through its role in the review
processes provided under WAC 222-08-160 as it existed on the effective
date of this section.
NEW SECTION. Sec. 2 A new section is added to chapter 76.09 RCW
to read as follows:
(1) The department may request information and technical assistance
from the department of fish and wildlife regarding any forest practices
hydraulic project regulated under this chapter.
(2) A concurrence review process is established for certain forest
practices hydraulic projects, as follow:
(a) Prior to submitting an application to the department under RCW
76.09.050 that includes a forest practices hydraulic project involving
one or more water crossing structures meeting the criteria of (b) of
this subsection, the applicant shall submit water crossing structure
plans and specifications to the department of fish and wildlife for
concurrence review consistent with section 1(3) of this act.
(b) The concurrence review process applies only to:
(i) Culvert installation or replacement, and repair at or below the
bankfull width, as that term is defined in WAC 222-16-010 on the
effective date of this section, in fish bearing rivers or streams that
exceed five percent gradient;
(ii) Bridge construction or replacement, and repair at or below the
bankfull width, of fish bearing unconfined streams; or
(iii) Fill within the flood level - 100 year, as that term is
defined in WAC 222-16-010, as it existed on the effective date of this
section, of fish bearing unconfined streams.
(c) When submitting an application to the department under RCW
76.09.050, the applicant shall attach the following to the application:
(i) The concurrence review form issued by the department of fish
and wildlife; and
(ii) Plans and specifications for each water crossing structure
subject to concurrence review.
Sec. 3 RCW 76.09.040 and 2010 c 188 s 4 are each amended to read
as follows:
(1)(a) 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 adopt forest practices rules pursuant to
chapter 34.05 RCW and in accordance with the procedures enumerated in
this section that:
(i) Establish minimum standards for forest practices;
(ii) Provide procedures for the voluntary development of resource
management plans which may be adopted as an alternative to the minimum
standards in (a)(i) 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;
(iii) Set forth necessary administrative provisions;
(iv) Establish procedures for the collection and administration of
forest practice fees as set forth by this chapter; and
(v) Allow for the development of watershed analyses.
(b) Forest practices rules pertaining to water quality protection
shall be adopted by the board after reaching agreement with the
director of the department of ecology or the director's designee on the
board with respect ((thereto)) to these rules. All other forest
practices rules shall be adopted by the board.
(c) Forest practices rules shall be administered and enforced by
either the department or the local governmental entity as provided in
this chapter. Such rules shall be adopted and administered so as to
give consideration to all purposes and policies set forth in RCW
76.09.010.
(2)(a) The board shall prepare proposed forest practices rules
consistent with this section and chapter 34.05 RCW. In addition to any
forest practices rules relating to water quality protection proposed by
the board, the department of ecology may submit to the board proposed
forest practices rules relating to water quality protection.
(b)(i) ((Prior to initiating the rule-making process, the proposed
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 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 rules relating to water quality
protection.)) The board
((
(ii) After the expiration of the thirty day period,and the department of ecology)) shall ((jointly)) hold one or more
hearings on the proposed rules pursuant to chapter 34.05 RCW. Any
county representative may propose specific forest practices rules
relating to problems existing within the county at the hearings.
(((iii))) (ii) The board may adopt and the department of ecology
may approve such proposals if they find the proposals are consistent
with the purposes and policies of this chapter.
(3)(a) The board shall incorporate into the forest practices rules
those fish protection standards in the rules adopted under chapter
77.55 RCW, as the rules existed on the effective date of this section,
that are applicable to activities regulated under the forest practices
rules. If fish protection standards are incorporated by reference, the
board shall minimize administrative processes by utilizing the
exception from the administrative procedures controlling significant
legislative rules under RCW 34.05.328(5)(b)(iii) for the incorporation
of rules adopted by other state agencies.
(b) Thereafter, the board shall incorporate into the forest
practices rules any changes to those fish protection standards in the
rules adopted under chapter 77.55 RCW that are: (i) Adopted consistent
with section 1 of this act; and (ii) applicable to activities regulated
under the forest practices rules. If fish protection standards are
incorporated by reference, the board shall minimize administrative
processes by utilizing the exception from the administrative procedures
controlling significant legislative rules under RCW
34.05.328(5)(b)(iii) for the incorporation of rules adopted by other
state agencies.
(c) The board shall establish and maintain technical guidance in
the forest practices board manual, as provided under WAC 222-12-090 as
it existed on the effective date of this section, to assist with
implementation of the standards incorporated into the forest practices
rules under this section. The guidance must include best management
practices and standard techniques to ensure fish protection.
(d) The board must complete the requirements of (a) of this
subsection and establish initial technical guidance under (c) of this
subsection by July 1, 2013.
(4)(a) The board shall establish by rule a program for the
acquisition of riparian open space and critical habitat for threatened
or endangered species as designated by the board. Acquisition must be
a conservation easement. Lands eligible for acquisition are forest
lands within unconfined channel migration zones or forest lands
containing critical habitat for threatened or endangered species as
designated by the board. 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 conservancy 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. For the purposes of conservation easements
entered into under this section, the following apply:
(i) For conveyances of a conservation easement in which the
landowner conveys an interest in the trees only, the compensation must
include the timber value component, as determined by the cruised volume
of any timber located within the channel migration zone or critical
habitat for threatened or endangered species as designated by the
board, 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;
(ii) For conveyances of a conservation easement in which the
landowner conveys interests in both land and trees, the compensation
must include the timber value component in (a)(i) of this subsection
plus such portion of the land value component as determined just and
equitable by the department. The land value component must be the
acreage of qualifying channel migration zone or critical habitat for
threatened or endangered species as determined by the board, to be
conveyed, multiplied by the average per acre value of all commercial
forest land in western Washington or the average for eastern
Washington, whichever average is applicable to the qualifying lands.
The department must determine the western and eastern Washington
averages based on the land value tables established by RCW 84.33.140
and revised annually by the department of revenue.
(b) Subject to appropriations sufficient to cover the cost of such
an acquisition program and the related costs of administering the
program, the department must establish 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 channel
migration zone or contain critical habitat for threatened or endangered
species as designated by the board. Lands acquired under this section
shall become riparian or habitat open space. These acquisitions shall
not be deemed to trigger the compensating tax of chapters 84.33 and
84.34 RCW.
(c) Instead of offering to sell interests in qualifying lands,
owners may elect to donate the interests to the state.
(d) Any acquired interest in qualifying lands by the state under
this section shall be managed as riparian open space or critical
habitat.
NEW SECTION. Sec. 4 A new section is added to chapter 77.55 RCW
to read as follows:
(1) The department and the department of natural resources shall
enter into and maintain a memorandum of agreement between the two
agencies that describes how to implement integration of hydraulic
project approvals into forest practices applications consistent with
this act.
(2) The initial memorandum of agreement between the two departments
must be executed by December 31, 2012. The memorandum of agreement may
be amended as agreed to by the two departments.
Sec. 5 RCW 76.09.050 and 2011 c 207 s 1 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 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 work 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 forest lands that are being converted to another use;
(b) ((Which require approvals under the provisions of the
hydraulics act, RCW 77.55.021;)) Within "shorelines of the state" as defined in RCW 90.58.030;
(c)
(((d))) (c) Excluded from Class II by the board; or
(((e))) (d) 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;
Class IV: Forest practices other than those contained in Class I
or II:
(a) On forest lands that are being converted to another use;
(b) 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;
(c) That involve timber harvesting or road construction on forest
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 or 84.34 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
(d) 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)) except that
the department must: Approve or disapprove an application within sixty
calendar days from the date the department receives the application if
the department determines that a detailed statement must be made,
unless the commissioner of public lands, through the promulgation of a
formal order, determines that the process cannot be completed within
such a 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.
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. In all other cases, the department
shall immediately mail a dated receipt to the operator.
(4) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, 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.
(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 forest lands that 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 (b) 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 76.09.205. 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.
Sec. 6 RCW 76.09.060 and 2007 c 480 s 11 and 2007 c 106 s 1 are
each reenacted and amended to read as follows:
(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. Activities
conducted by the department or a contractor under the direction of the
department under the provisions of RCW 76.04.660, shall be exempt from
the landowner signature requirement on any forest practices application
required to be filed. 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) For an application submitted on or after the effective date of
section 2 of this act that includes a forest practices hydraulic
project, plans and specifications for the forest practices hydraulic
project to ensure the proper protection of fish life;
(g) 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))) (h) Soil, geological, and hydrological data with respect to
forest practices;
(((h))) (i) The expected dates of commencement and completion of
all forest practices specified in the application;
(((i))) (j) Provisions for continuing maintenance of roads and
other construction or other measures necessary to afford protection to
public resources;
(((j))) (k) An affirmation that the statements contained in the
notification or application are true; and
(((k))) (l) 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
forest practice is subject to the reforestation requirement of RCW
76.09.070.
(a) If the application states that any land will be or is intended
to be converted:
(i) The reforestation requirements of this chapter and of the
forest practices rules shall not apply if the land is in fact converted
unless applicable alternatives or limitations are provided in forest
practices rules issued under RCW 76.09.070;
(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 well as the forest practices rules.
(b)(i) Except as provided elsewhere in this section, ((if the))
when the department becomes aware of a landowner ((harvests))
harvesting without an approved application or notification or the
landowner ((does not state)) has not stated that any land covered by
((the)) an application or notification will be or is intended to be
converted((, and the department or the county, city, town, or regional
governmental entity becomes aware of)), the department shall:
(A) Take appropriate action under the authority of RCW 76.09.080
through 76.09.140; and
(B) Provide electronic notice to the department of ecology and the
county, city, or town, or regional governmental entities of potential
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) The county, city, town, or regional governmental entity shall,
consistent with RCW 76.09.460, issue a notice of a conversion to a
nonforestry use to the landowner and send copies to the department and
the department of ecology. Upon receipt, the department shall send to
the appropriate county, city, town, or regional governmental entity:
(A) A copy of the applicable forest practices application or
notification, if any; and
(((iii))) (B) 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.
(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 stated an
intent to convert.
(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))
governmental entity is subject to the development prohibition and
conditions provided in RCW 76.09.460.
(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 RCW
76.09.470.
(g) The application or notification must include a statement
requiring an acknowledgment by the forest landowner 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)(a) 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)) three 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)).
(b) A notification or application may be renewed for an additional
three-year term by the filing and approval of a notification or
application, as applicable, prior to the expiration of the original
application or notification. A renewal application or notification is
subject to the forest practices rules in effect at the time the renewal
application or notification is filed. Nothing in this section
precludes the applicant from applying for a new application or
notification after the renewal period has lapsed.
(c) 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)) three years.
(d) 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)) three 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)) The department may require the applicant to provide
advance notice before commencing operations on an approved application
or notification.
(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.
Sec. 7 RCW 76.09.150 and 2000 c 11 s 7 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 ensuring compliance with this chapter ((and)), the
forest practices rules, including forest practices rules incorporated
under RCW 76.09.040(3), and to ensure that no material damage occurs to
the natural resources of this state as a result of ((such)) forest
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 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 practices 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.
NEW SECTION. Sec. 8 A new section is added to chapter 43.30 RCW
to read as follows:
(1) By December 31, 2013, the department must make examples of
complete, high quality forest practices applications and the resulting
issued permits readily available to the public on its internet site, as
well as the internet site of the office of regulatory assistance
established in RCW 43.42.010. The department must maximize assistance
to the public and interested parties by seeking to make readily
available examples from forest practices that generate significant
permitting activity or frequent questions.
(2) The department must regularly review and update the examples
required to be made available on the internet under subsection (1) of
this section.
(3) The department must obtain the written permission of a permit
applicant or permittee before making publicly available that
applicant's or permittee's application or permit under this section and
must work cooperatively with the permit applicant or permittee to
ensure that no personal or proprietary information is made available.
Sec. 9 RCW 76.09.065 and 2000 c 11 s 5 are each amended to read
as follows:
(1) ((Effective July 1, 1997,)) An applicant 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)) (a) If sections 1 through 3 and 6 of
this act are not enacted into law by June 30, 2012, then the fee for
applications and notifications submitted to the department 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))) (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
(((b))) (ii) A conversion option harvest plan approved by the local
governmental entity and submitted to the department as part of the
forest practices application.
(b) If sections 1 through 3 and 6 of this act are enacted into law
by June 30, 2012, then the fee for applications and notifications
submitted to the department shall be one hundred fifty dollars for
class II applications and notifications, class III applications, and
class IV forest practices that 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.
The fee shall be one thousand five hundred dollars for class IV forest
practices applications on lands being converted to other uses or on
lands that 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 the same as for a class III forest practices
application 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
forest practices application.
(3) The forest practices application account is created in the
state treasury. Moneys in the account may be spent only after
appropriation. All money collected from fees under ((this)) subsection
(2) of this section shall be deposited in the ((state general fund))
forest practices application account for the purposes of implementing
this chapter, chapter 76.13 RCW, and Title 222 WAC.
(((3))) (4) For applications submitted to ((the)) a local
governmental entity as provided in this chapter, 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)) determined by the local governmental entity.
(((4) Recording fees shall be as provided in chapter 36.18 RCW.))
(5) 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. 10 RCW 76.09.460 and 2007 c 106 s 2 are each amended to read
as follows:
((If)) When a county, city, town, or regional governmental entity
((receives)) issues 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.
Sec. 11 RCW 76.09.470 and 2007 c 106 s 3 are each amended 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)), and submit a new
application for the conversion. The fee for a new application for
conversion under this subsection (1)(c) is the difference between the
applicable fee for the new application under RCW 76.09.065 and the fee
previously paid for the original application or notification, which
must be deposited in the forest practices application account created
in RCW 76.09.065.
(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. 12 RCW 76.09.030 and 2008 c 46 s 1 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)) commerce 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)). However, the county
member's service on the board shall be conditioned on the member's
continued service as an elected county official;
(g) One member representing a timber products union, appointed by
the governor from a list of three names submitted by a timber labor
coalition affiliated with a statewide labor organization that
represents a majority of the timber product unions in the state; and
(h) Six members of the general public appointed by the governor,
one of whom shall be a small forest landowner who actively manages his
or her 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 August 18, 1999, 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 77.55 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.)) 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 chair of the board.
(3)
(((4))) (3) The board shall meet at such times and places as shall
be designated by the chair or upon the written request of the majority
of the board. The principal office of the board shall be at the state
capital.
(((5))) (4) 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.
(((6))) (5) The board may employ such clerical help and staff
pursuant to chapter 41.06 RCW as is necessary to carry out its duties.
Sec. 13 RCW 76.09.020 and 2010 c 210 s 19 and 2010 c 188 s 6 are
each reenacted and 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 pollution control hearings board
created by RCW 43.21B.010.
(3) "Application" means the application required pursuant to RCW
76.09.050.
(4) "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.
(5) "Board" means the forest practices board created in RCW
76.09.030.
(6) "Commissioner" means the commissioner of public lands.
(7) "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.
(8) "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.
(9) "Date of receipt" has the same meaning as defined in RCW
43.21B.001.
(10) "Department" means the department of natural resources.
(11) "Ecosystem services" means the benefits that the public enjoys
as a result of natural processes and biological diversity.
(12) "Ecosystem services market" means a system in which providers
of ecosystem services can access financing or market capital to
protect, restore, and maintain ecological values, including the full
spectrum of regulatory, quasiregulatory, and voluntary markets.
(13) "Fish passage barrier" means any artificial instream structure
that impedes the free passage of fish.
(14) "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.
(15) "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.
(16) "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, including forest practices
hydraulic projects that include water crossing structures, and
associated activities and maintenance;
(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.
(17) "Forest practices rules" means any rules adopted pursuant to
RCW 76.09.040.
(18) "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.
(19) "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.
(20) "Forests and fish report" means the forests and fish report to
the board dated April 29, 1999.
(21) "Operator" means any person engaging in forest practices
except an employee with wages as his or her sole compensation.
(22) "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.
(23) "Public resources" means water, fish and wildlife, and in
addition shall mean capital improvements of the state or its political
subdivisions.
(24) "Small forest landowner" has the same meaning as defined in
RCW 76.09.450.
(25) "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.
(26) "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.
(27) "Unconfined channel migration zone" means the area within
which the active channel of an unconfined 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.
(28) "Unconfined 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.
(29) "Forest practices hydraulic project" means a hydraulic
project, as defined under RCW 77.55.011, that requires a forest
practices application under this chapter.
(30) "Fill" means the placement of earth material or aggregate for
road or landing construction or other similar activities.
NEW SECTION. Sec. 14 A new section is added to chapter 43.21C
RCW to read as follows:
The incorporation of fish protection standards adopted under
chapter 77.55 RCW into the forest practices rules as required under RCW
76.09.040(3) is exempt from compliance with this chapter.
NEW SECTION. Sec. 15 (1) The departments of natural resources
and fish and wildlife must jointly provide a report to the appropriate
committees of the legislature containing findings and any
recommendations relating to the regulatory integration of hydraulic
projects and forest practices as provided in this act, including:
(a) Progress made in implementing the integration required under
this act, including rule incorporation and development of forest
practices board manual guidance;
(b) An update on and potential for permitting efficiencies in
addition to the integration required under this act;
(c) The process for and outcomes from review of forest practices
applications that include forest practices hydraulic projects by the
department of fish and wildlife; and
(d) Compliance monitoring for forest practices hydraulic projects
through the review processes provided under WAC 222-08-160 as it
existed on the effective date of this section.
(2) The departments of natural resources and fish and wildlife must
provide an initial report by September 1, 2014, and a second report by
September 1, 2016.
(3) This section expires December 31, 2016.
NEW SECTION. Sec. 16 Sections 2 and 5 of this act take effect on
the date the forest practices board incorporates fish protection
standards adopted under chapter 77.55 RCW into the forest practices
rules and approves technical guidance as required under RCW 76.09.040.
The department of natural resources must provide written notice of the
effective date of these sections to affected parties, the chief clerk
of the house of representatives, the secretary of the senate, the
office of the code reviser, and others as deemed appropriate by the
department of natural resources.
NEW SECTION. Sec. 17 Nothing in this act affects any rules,
processes, or procedures of the department of fish and wildlife and the
department of natural resources existing on the effective date of this
section that provide for regulatory integration of hydraulic projects
and forest practices for projects in nonfish-bearing waters.
NEW SECTION. Sec. 18 Nothing in this act authorizes the
department of fish and wildlife to assume authority over approval,
disapproval, conditioning, or enforcement of applications submitted
under chapter 76.09 RCW.
NEW SECTION. Sec. 19 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.