WSR 97-15-042

PROPOSED RULES

FOREST PRACTICES BOARD

[Filed July 11, 1997, 2:45 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-05-033.

Title of Rule: Revisions to stream typing rules.

Purpose: To modify forest practices rules that define Type 2 and 3 Waters in WAC 222-16-030, and define requirements for the Forest Practices Board manual.

Statutory Authority for Adoption: Chapter 35.05 [34.05] RCW, RCW 76.09.040, [76.09.]050.

Statute Being Implemented: Chapter 76.09 RCW.

Summary: WAC 222-16-030 and 222-12-090.

Reasons Supporting Proposal: New data has shown that the physical characteristics of streams, as defined in the current forest practices rules, are no longer accurate. This proposed rule would update those physical characteristics based on current knowledge so that appropriate [no further information supplied by agency].

Name of Agency Personnel Responsible for Drafting: Judith Holter, 1111 Washington Street S.E., Olympia, WA 98501-7012, (360) 902-1412; and Implementation and Enforcement: John Edwards, 1111 Washington Street S.E., Olympia, WA 98501-7012, (360) 902-1730.

Name of Proponent: Forest Practices Board, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rules establish presumptions for determining fish use in the absence of field verification. Current knowledge about fish use of streams and habitat is needed in the forest practices rules so that appropriate riparian protection is provided along streams. Recent studies have resulted in upgrading a large number of Type 4 (nonfish-bearing) streams to fish bearing (Type 2 or 3). The proposed rules are necessary to protect public resources, specifically fish, by ensuring that riparian rules are being applied to fish-bearing streams and that the water quality upstream of fish hatchery intakes is protected.

The proposal also adds fish use determination protocols to the Forest Practices Board manual.

Timber, fish and wildlife participants developed this rule and recommended it as a consensus proposal to the Forest Practices Board as a first step in developing a comprehensive strategy to deal with fish, water quality, and a functional water typing system. TFW is continuing to develop a more comprehensive proposed state rule that will also meet federal water quality requirements.

Because this proposed rule pertains to water quality, it will be coadopted by the Department of Ecology per RCW 76.09.040(1). The board and ecology will conduct the public review process jointly, including the public hearings.

Proposal Changes the Following Existing Rules: WAC 222-123-090 adds a new section to the Forest Practices Board manual.

WAC 222-16-030, provides protection of water quality above fish hatcheries; stream gradient percentages change from "less than 12%" to "16% or less"; stream channel widths change from "5 ft." to "2 ft. or greater in western Washington" and "3 ft. or greater in eastern Washington"; contributing basin sizes are added to the rule, 50 acres in western Washington and 175 acres in eastern Washington; and the department is given authority to waive the presumption of fish use based on three specific criteria.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Executive Summary: The proposed rule amendments create an impact on owners of forest land and dependent sectors. The amendments would have a disproportionate impact on small business and small landowners. Most of the disproportionate impact is caused by the fact that small parcels of land crossed by a stream are more likely to have a substantial share of the parcel separated by the buffer and are thus not harvestable. Small businesses, including individuals with no employees, are more likely to own smaller parcels of land. 5.6% of the parcels in the sample had part of the land economically separated by the buffer, in other words, part of the harvest is lost.

Both the proposed rule amendments and the program include all of the cost minimization features that are legal and feasible. Some of the cost minimization features were not required but were allowed by law. The primary reduction in costs was provided by two exemptions and one service:

Parcels that are thirty acres or less with more than 10% of the timber in the buffer qualify for a buffer exemption that allows 50% of the buffer to be harvested. 16% of the parcels in the sample qualify for this exemption.

A further exemption is provided if a structure is on the parcel and the trees are within one hundred fifty feet of the structure. These trees are exempted from the rule.¹ Parcels under two acres that have an existing commercial or residential structure were removed from the sample. There were 4 parcels or 1.88% of the final sample that fit this criteria.

Survey work for small landowners will be done cooperatively by Washington Department of Fish and Wildlife, the tribes, and the USFWS. This expense will not accrue to the landowner. The rule amendments are designed to protect fish. If a survey shows that the stream segment is not fish bearing it will be reclassified as Type 4 or Type 5. Thus mechanisms that protect fish will not be required if there are no fish. Approximately 25% of the reclassified parcels may be removed from the Type 3 classification.

I. Background Information: The Washington State Department of Ecology (ecology) and Forest Practices Board (board) have proposed permanent amendments to three sections, WAC 222-12-090, 222-16-030, and 173-202-020. The Forest Practices Board will amend WAC 222-12-090 and 222-16-030, while ecology will amend WAC 173-202-020. The ecology amendments only adopt the Forest Practices Board rules by reference. This small business economic impact statement covers all three rule amendments.

A. A Brief Description of What the Proposed Rule Amendments Do: These proposed rule amendments change the existing presumptions for determining whether streams are fish bearing in the absence of field verification. This "presumption" is a legal assumption about whether fish are living in or swimming through the stream reach. Field checks can be used to reverse this assumption if no fish are found.

The amendments are a first step towards updating the water type rules and associated riparian protection. Water typing triggers riparian protection through the forest practices rules, watershed analysis, and some local land use decisions. In order to assure this protection the definitions used to determine water types must reflect current knowledge about fish use and habitat.

The proposed amendments would change the designation of some Type 4 and Type 5 stream segments to Type 2 or Type 3 stream segments.² The practical impact is that some parts of Type 4 and Type 5 streams would be redesignated fish bearing streams and would be protected during logging. The following fish protection may cause costs:

A twenty-five foot buffer must be provided on both sides of the stream in western Washington and a thirty foot buffer on both sides of the stream must be provided in eastern Washington.³

Chemicals must be applied by hand rather than using aerial application in the buffer.⁴

Logs must not be dragged across the streams.⁵

Road crossings must have a culvert or bridge that fish can pass through.⁶

This document compares the potential economic impacts of the proposed change on small and large business.

The small forest landowners generally have no employees or very few employees. They will be treated as small businesses for purposes of this report. There are thousands of these owners. The one hundred ten large industrial forest land owners have employees, however, some of them have fewer than fifty employees.⁷

B. General Information on the Water Typing System and the Need for the Rule: The water typing system used in Washington's forest practices rules are based on beneficial uses, one of which is providing fish habitat. The water typing system has been in place for more than twenty years. Type 1, 2 and 3 Waters contain anadromous and resident fish, while Type 4 and 5 Waters do not. Maps based on aerial photo interpretation were developed to implement the system with limited field verification.

Over the years, field verification has provided data on actual fish use of waters which has led to updated water type maps. TFW⁸ is an integral part of the field verification process. Although water types are continually reviewed and updated, large numbers of stream segments have not been field verified.

In August 1994, the Point-No-Point Treaty Council published a report, Stream Typing Errors in Washington Water Type Maps for Watersheds of Hood Canal and the Southwest Olympic Peninsula. Simultaneously, the Quinault Indian Nation and the Department of Fish and Wildlife were also reviewing water types in the southwest part of the Olympic Peninsula. Data from both studies indicated that seventy-two percent of the Type 4 streams were actually Type 2 or 3 streams. In addition, projects funded by the United States Fish and Wildlife Service with cooperation from some western Cascade landowners and Washington Trout have also resulted in significant upgrades.

In recent years, much public attention has focused on the status of Washington's fish and water resources. The number of waterbodies included on EPA's 303(d) water quality limited list has increased and now includes many forested streams. Numerous fish stocks are being considered for listing under the Endangered Species Act (ESA).

Due to significant field verification of water types and research, more is known today about fish distribution and the physical characteristics of fish habitat than was known when the existing water type definitions were written.⁹

II. Statement of Economic Impacts: The purpose of this report is to assist ecology and the board in making decisions on the proposed rule amendments. It will also assist in complying with legal requirements. The law requires that the economic aspects of state agency rules be evaluated prior to promulgation. If there is a disproportionate impact on small businesses then the agencies must reduce the costs of the rule if it is legal and feasible to do so.

Each rule proposed by ecology and the board in response to legislative mandates must comply with the Economic Policy Act¹⁰, the Administrative Procedure Act¹¹, and the Regulatory Fairness Act.¹²

The proposed rule amendments have been reviewed and have been found to have a disproportionate impact on small businesses. The rule and the amendments provide all of the cost minimization features that are legal and feasible.

A. Regulatory Fairness Act Compliance: The Regulatory Fairness Act requires preparation of a small business economic impact statement (SBEIS) for proposed rules affecting industry.¹³ The proposed rule has been evaluated and the amendments may have a significant impact on some affected businesses. Therefore, this document meets the requirements for an SBEIS. The purpose of this analysis is to look at small businesses as a group, not at individual businesses.

The Regulatory Fairness Act also requires that the economic impacts be reduced if there is a disproportionate economic impact on small businesses in comparison with large businesses and if it is legal and feasible. Several types of cost reductions are listed in the act. Cost reductions must be both legal and feasible. If the agency chooses not to use these cost reductions, the agency must provide a written justification for that decision.

An agency that is adopting administrative rules is required to analyze the compliance costs of the proposed rules. The SBEIS must compare the cost of compliance for small businesses with the costs of compliance for the largest 10% of the businesses. For these proposed rule amendments, the relevant questions to the Regulatory Fairness Act are:

1. What are the costs for forest landowners whose property is affected?

2. Do the proposed rules disproportionately impact small businesses as compared to large businesses?

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Impacts due to the proposed rule amendment are largely defined by parcel size, so it has also been necessary to answer the question:

3. What are the compliance costs per acre for different parcel sizes?

This question is relevant because the small parcels are more likely to have land that is "separated" (see below, section I B).

A final question had to be addressed for this SBEIS:

4. How are large and small businesses identified?

The definition of small and large business in the Regulatory Fairness Act does not fit forest sectors well. Size is defined by the number of employees in the act. A company that has fifty or fewer employees is "small." Impacts on these small businesses have to be compared to "the largest 10% of the businesses." In other words the small companies must be compared with the top 10% of the companies. In forestry, individuals who own forested land may not act like a "business" until they harvest the timber. Furthermore, published data on employment for individuals and companies is unavailable for many companies in the affected sectors. This document relies on both the existence and absence of data to define which companies are small and which companies are in the largest 10% of the companies affected. Companies for which employment data is available are ranked based on that data. If no data on employment is available this document assumes that those individuals and companies that are not listed as industrial and those companies with no UBI number are likely to be small. It is this distinction rather than employment that defines the first and second rows of data for Table 1. It was necessary to create this alternative breakdown because of the lack of data.

B. Results: Finding of Disproportionate Impact: The proposed rule amendments have been reviewed. This document only examines the impact of the rule amendments and not the rule as it stands now. The proposed amendments do have a disproportionate impact.¹⁴ Many small parcels are not affected at all. For those that are affected the impact is disproportionate. Table 1 titled "Impacts by company size" displays various acre and dollar based measures of impact.

Based on the sample the impact is disproportionate. Companies with fifty or fewer employees lose a larger percentage of the value of the timber to buffers and separated¹⁵ land. If one compares companies for whom employment is uncertain with the largest companies, the impact is also disproportionate.

Why is the impact disproportionate? The greater percentage of the separated land in small parcels creates most of the disproportionate impact. Note that in Table 1, column 5, the small businesses lose a greater percentage of their land through separation. The impact of the buffers themselves would be disproportionate but the rule incorporates some exemptions (see part E, 2, a and b in this section). These exemptions change the impact so that it is unclear whether the buffers themselves have a disproportionate impact. Data would support the assertion that for the companies for which employment is known there is no disproportionate impact. However for companies for which employment is uncertain, the data supports a disproportionate impact.

State-wide about 1.37% of the privately owned forested land is affected by the rule.¹⁶ Many parcels of land are completely unaffected by the new requirements. Indeed, five of sixty sections sampled had no newsixty buffer. However, for parcels that are affected, the range of impacts in the sample is from a negligible effect to 95% of the land.

If an owner has a larger parcel of land the impact will be closer to the state-wide average impact. If an owner has a small parcel it is highly likely that there will be no impact. However, when there is an impact on a small parcel, it is likely to affect a greater percentage of the parcel.

The following map (Figure 1) represents a hypothetical example of a section divided into parcels marked A, B, and C. The largest parcel (A) will have from .48% to 4.13% of the parcel in a buffer and from 0% to 30% of the parcel separated.¹⁷ The medium sized parcel (B) will have a somewhat larger impact. The smallest parcels (C) have an impact ranging from nothing to a very high percentage of the property. In the sample the impact for small parcels ranges from .06% to 95% for small landowners with stream segments on their property.^{18 19} The average percentage impacts range from 1.5% (see column 7) to 9.87% (see column 9) of the parcel (depending on whether the parcel is separated).²⁰ Most parcels have no impact whatsoever but they are not evaluated in this sample.

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Explanation of parcel separation.

A buffer area can cut part of a forest off from the road. If the value of the timber is too low to cover the cost of appropriate stream crossings it may not be harvested. Small parcels are more likely to be separated by the buffer. In the examples below the black line is the stream segment, the dark gray line is a road and the light gray area is a buffer.

In Figure 2 the upper left hand portion of the parcel (the white area not in the buffer) may be physically separated by the buffer. Depending on the cost of crossing the buffer its economic value may not be available to the owner. Some owners may be able to arrange to move the timber through an adjacent owner's property but some may not. In the sample, this separated land ranges from 0 to 95% of the parcel.

Large percentages of a parcel are more likely to be separated if the parcel has a road as one of its boundaries like the hypothetical parcel in Figure 3. Out of 213 parcels, seven of the parcels have land that is separated under current economic conditions, twelve will have land separated by this rule, and eighteen will have land that is physically but not economically separated by the rule. Approximately 14% of the parcels have an existing road crossing and are not counted in the other percentages listed in this paragraph or the table below.²¹

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* The 12 parcels in row 4 and the 18 parcels in row 5 are the same parcels as the 30 parcels in row 3.

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Owners with large parcels will not usually face this problem. Roads are cheaper to build than stream crossings. If roads are built through upland areas rather than across streams it may save money to avoid stream crossings. Then less areas will be separated. If a parcel is large the owner is more likely to be able to build roads through upland areas. The owner can simply go around the stream without passing through someone else's land. Parcels over sixty acres in size were remarkable for the small number of stream crossings. In some cases extensively roaded sections have only two or three stream crossings. This indicates that access to all of a parcel is unlikely to be a problem for the larger parcels. In the sample, some parcels appear to have extensive roading while some parcels appear to have none. For large parcels that have no roads it is impossible to know where the roads or stream crossings will be built. This is a weakness of this data. Parcels with complete roading will have lower costs than other parcels.

C. Which industries are affected?

The Regulatory Fairness Act defines "industry" as all of the businesses in this state in any one four-digit Standard Industrial Classification (SIC) as published by the United States Department of Commerce (RCW 19.85.020).²²

The primary impact of the amendments is in SIC Code 0811 because all the companies in this code are forest landowners. Forest landowners become subject to the forest practices rules when they make the decision to harvest their timber. The other SIC codes/businesses listed below depend upon this decision to harvest; their businesses can function only when there is a timber supply available.

The Forest Practices Board's proposed rules will apply to any person preparing to conduct forest practices described in those rules. The industries impacted by the proposed rules could include the following SIC codes listed in Table 2.²³

Timber Tracts and Logging, the 0811 and 2411 SIC coded sectors respectively are the industries most likely to be affected by the proposed changes. The companies outside of 0811 are directly affected as forest landowners. The other SIC codes are affected either as landowners or as producers dependent on harvests. Many companies in many sectors own forest land for purposes that may or may not be directly related to their primary SIC classification (see Table 2 below). Note that the number of companies in the table represents the number reported in the SIC list by Employment Security. The table indicates that diverse industries own forest land.

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* Data Source: Washington State Employment and Security Department 1993. * 1994 2nd quarter extrapolated.

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D. Compliance Cost Considerations Required Under the Law: The Regulatory Fairness Act requires that several kinds of costs be considered.²⁴ These are listed and addressed below.

1. Will the rule cause businesses to lose sales or revenues?

Loss of sales revenue is the dominant cost impact of the rule. Landowners may lose revenues from the harvest of timber from their lands. Even if the landowner does not sell the timber, the reduced board footage can affect the value of the land and the owner could have a reduced value from the sale of the land itself.²⁵

Businesses that use raw lumber and sell product may also lose sales if the rule causes reduced supplies of raw logs and product prices in the Pacific Northwest rise.

2. What reporting, record-keeping or professional services are required?

A landowner who has a stream segment that is less than 20% gradient and two feet or more in width will have the stream segment treated as a Type 3 (fish bearing) stream. This requires buffers unless a protocol survey is conducted and documents the absence of fish. The Department of Fish and Wildlife, the USFWS/NMFS and the tribes have agreed to conduct surveys for nonindustrial landowners. Thus a nonindustrial landowner would not have to bear the cost of conducting the protocol survey. Industrial landowners will have to cover the cost of these studies.

No additional reporting requirements result from these proposed rule amendments.

3. What additional equipment, supplies, labor, and or administration is needed?

Several mechanisms are required in the buffers to protect the fish. Hand broadcasting fertilizer and chemicals is more expensive than mechanical broadcasting. Stream crossings must allow fish passage and logs can't be dragged through the buffer. The cost of hand broadcasting and dragging logs farther depends in part on topographical information that is unavailable. The tables in this document therefore assume that timber in the buffer is not harvested (unless an exemption is provided) and that timber in separated areas must be brought out over a stream crossing.

Landowners with timber separated by a stream may opt to:

Build a bridge or road across the stream. Requires a hydraulic project approval.

Use a suspended harvest system cutting a corridor through the riparian management zone (RMZ) or flying above the RMZ.²⁶

Not cut the timber (see 1. above).

Economists assume that the owner will choose the option that maximizes their gain from a harvest. The dollar value of the loss of the timber is therefore the maximum loss.

Stream Crossing Costs: There are several provisions available to allow fish to pass at road crossings. Each of these would make it possible to harvest separated land. Oversized culverts can be allowed to fill with rock and soil to provide a passable stream bed. Bottomless and box culverts or baffles can allow the fish to move naturally upstream. Bridges also allow fish to pass. Each of these options is more expensive than a normal culvert.

The cost of stream crossings and roads defines whether part of a parcel is separated. For example, suppose a landowner wants to build a road across a stream segment that would be reclassified. Suppose the timber is worth $17,000. If the road and stream crossing cost $3,000 each ($6,000) without the rule amendments, then cutting the timber will create a gain of $11,000. With the rule amendments the stream crossing would cost $15,000.²⁷ This is a $12,000 increase in cost. However, the total cost of the stream crossing and road is important in deciding whether part of the parcel would be separated. If the cost of the crossing jumps from $3,000 to $15,000 because the stream is reclassified and the road still costs $3000, then the total cost of the road and crossing jumps to $18,000. The $17,000 worth of harvestable timber is now economically separated.

There are three different measures of the cost of the rule amendments. The increased cost of the culvert is $12,000. The loss to the owner from the amendment is his/her $11,000 gain. If there are unemployed resources (such as culvert installers, mills or workers) the loss to wage earners and the owners of all resources combined is the $17,000. This document counts the loss by counting the entire $17,000 value of the timber as a loss (under sales above). Without additional information on each parcel the model is unable to tell where the crossings will go for each parcel and how much they will cost. It is also difficult to determine whether the timber is already separated regardless of the rule amendments. In order to avoid undercounting the cost of the rule, the entire value of all separated timber is counted as a cost in Table 1. (See Table 1a which shows that only part of the counted cost is actually separated and the discussion in "1." above regarding loss of sales revenue.)

Table 3 data shows the range of possible costs for parcels with separated land that has a high economic value. Without the rule amendments the costs listed are for installation of a four foot culvert. With the rule amendments the low cost is for an oversized culvert that is allowed to partially fill allowing fish passage, the medium cost is for a bottomless culvert and the high cost is for a bridge.

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Road Costs: It is unclear whether the rule amendments will cause more roads to be built. One source that provided cost estimates indicated that longer roads may be necessary. This is based on the assumption that there will be about an $8,000 increase in the cost of the culverts for a stream crossing. Avoiding this cost may be possible by building extra roads at $700 per 100 feet.²⁹ They can build over 1,000 feet of road (1/5th of a mile) for the $8,000. The assumption that more roads will be built may be true for parcels where there are many options for road placement. Indeed, for some large plots with existing roads and road crossings in the sample, the builders apparently have gone out of their way to avoid existing Type 3 streams.

In some cases the rule may change the designation for a sufficient length of stream to make it impossible or very expensive to reach the Type 4 or Type 5 areas for a stream crossing. Given the added expense of baffled or bottomless culverts on steep stream reaches (12% to 20% slopes) it is possible that more crossings will occur on the flatter portions (0% to 12% slopes) of streams previously classified as Type 3 streams.

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In Figure 4 the parcel currently contains land buffered as Type 3 (light gray A area) and land that is now Type 4 but which would be Type 3 under the proposed amendments (dark gray B area). The landowners have three options for the road. Under the current rule the owner can save $8,000 for the stream crossing and spend $2,000 more on extra road if they use road 2 rather than road 3. Under the revised rule the cost of the culvert for road 2 would be the same as it is for road 3. In evaluating road 1 they would spend $8,500 more on road 1 to save the extra $8000 for the stream crossing. The more direct road 3 would be chosen. In situations like this, the rule amendments may tend to reduce the miles of road. It depends entirely on the relative cost of options 1 and 3.

Suspension System: Suspension systems only work in specific topographies. The data doesn't allow analysis of this option. Companies would only use it if it was the least expensive option. Therefore, not including this option may exaggerate the cost of the rule amendments.

E. Cost Reduction Under the Regulatory Fairness Act: If a rule has a disproportionate impact, cost reduction is required where it is legal and feasible in meeting the objectives of the statutes on which the rule is based. The rule and the program are already set up to reduce the cost for small landowners. The proposed amendments provide cost reductions in most of the categories required in the Regulatory Fairness Act.³⁰

1. Adjusting reporting and record-keeping requirements.

Survey work for small landowners will be done cooperatively by Washington Department of Fish and Wildlife, the tribes, and the USFWS. This expense will not be accrued to the landowner. The rule amendments are designed to protect fish. If a survey shows that the stream segment is not fish bearing it will be reclassified as Type 4 or Type 5. Thus mechanisms that protect fish will not be required if there are no fish. Approximately 25% of the streams may be reclassified and have reduced costs based on the studies.

2. Establishing performance rather than design standards:

a. Parcels that are thirty acres or less with more than 10% of the timber in the buffer qualify for a buffer exemption that allows 50% of the buffer to be harvested. 16% of the parcels in the sample qualify for this exemption. The exemption was incorporated into the calculations for Table 1. It substantially reduces the disproportionate impact of the buffers themselves.³¹

b. A further exemption is provided if a structure is on the parcel and the trees are within one hundred fifty feet of the structure. These trees are exempted from the rule.³² Parcels under two acres that have an existing commercial or residential structure were removed from the sample. There were four parcels or 1.88% of the final sample that fit this criteria.³³

c. Finally, there are multiple mechanisms for avoiding fish impacts. An alternative plan can be approved if a fisheries biologist can demonstrate that the plan meets or exceeds the requirements.

3. Exempting small businesses from any or all regulatory requirements, to the extent allowable and feasible under the law:

It is not feasible to create such an exemption. The goal of the law and the rule is to protect the fish. Exempting all small businesses would exempt 99% of the landowners³⁴ and make the rule completely ineffective at protecting the fish. The only exemption that could be provided is to exempt existing road crossings from being rebuilt if they are in an area newly classified as Type 3. This will benefit more small landowners than large landowners.

4. Reducing or modifying fine schedules: The civil penalty schedule in WAC 222-46-060 already allows penalties to be modified based on whether:

The violation was intentional

The violation caused an adverse impact

The violation caused damage to public resources

There is a history of violations

The person cooperates with the department

Someone else contributed to the violation

The damages are repairable

Small landowners are likely to have someone else harvest the trees and to have a very limited history of cuts. Thus at least two of the factors available for consideration are more likely to exist for small landowners.

F. How are small and large businesses being involved in the rule making?

This rule was developed by timber, fish and wildlife participants, who used a consensus process to: (1) Determine that a rule revision is needed; (2) identify possible alternatives; and (3) arrive at a recommendation which was presented to the Forest Practices Board and ecology. Timber, fish and wildlife participants include representatives of both industrial and nonindustrial landowners, as well as federal and state agencies, counties, tribes, and the environmental community.

Members of the public, including large and small businesses, have been invited to participate in this rule making via the following:

After this language was adopted by the board as an emergency rule (November 1996), it was distributed to more than 1200 individuals and groups who have requested to be notified about Forest Practices Board rule making.

The board's Preproposal Statement of Inquiry was published in the Washington State Register on March 5, 1997; ecology's notice was published April 16, 1997.

The board and ecology conducted the thirty-day review required by the Forest Practices Act (RCW 76.09.040(2)) from February 20, 1997, to March 21, 1997. In addition to notifying the Department of Fish and Wildlife and the counties, comments were requested from TFW participants.

More than 300 individuals and groups, many of whom are large and small businesses, are kept up-to-date on board rule making by receiving Forest Practices Board meeting agendas and minutes. The board takes public comment at every regular quarterly meeting, and at each special meeting.

A hearing is tentatively scheduled for November 12, 1997, at 5 p.m. in the Natural Resources Building, Room 172, at 1111 Washington Street S.E., in Olympia. It will be held jointly by the Forest Practices Board and ecology. When phase 2 of the rule making (the "forest module") begins public hearings will be held state-wide. Please send written comments on the proposed rule amendments to Judith Holter, Forest Practices Board, Rules Coordinator, Department of Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia, WA 98504-7012.

Ecology and the Forest Practices Board will also consider comments on this small business economic impact statement and may opt to revise the content. Send comments to Cathy Carruthers at (360) 407-6938, Department of Ecology, Economic and Regulatory Research, P.O. Box 47600, Olympia, WA 98504-7600, carr461@ecy.wa.gov. Ecology is particularly interested in analysis of demand and supply elasticity or costs of roads and stream crossings.

III. Study Design: No existing data sets or analyses of potential impacts were available. The research team therefore generated a new data set for this rule. The data set matches GIS data, photo interpreted data and county assessor data using parcels of forested land as the case basis.

A. Department of Natural Resources Data: The Department of Natural Resources provided mapped GIS data from a random sample of thirty sections in both eastern and western Washington for a total of sixty sections (see Appendix 1 for the methods). The maps identified private and public land and marked out land of less than 20% slope and greater than 20%. The maps showed roads, streams and buffers of streams that may shift from Type 4 or 5 to Type 3.

1. Data: The ARC/INFO Geographic Information System (GIS) layers used in this project included:

Trans, WA DNR, 1997.

Hydro, WA DNR, 1997.

County, WA DNR, 1997.

Major Public Lands (MPL), WA DNR, 1988.

Private Forest Land Ownership (PFL_OWN), WA DNR 1994. Private forest land information was generated from the WA DNR/WFPA resource lands mapping project and from Atterbury Consultants through a digital data exchange with the National Biological Survey-National Environmental Research Center.

Slope layer was derived from 7.5 minute 30 meter Digital Elevation Model (DEM), USGS.

1:250,000 digital map of Land Use/Land Cover (LULC) was used to separate forested from nonforested lands, USGS, 1976.

Public Land Survey (PLS) layer containing township and section boundaries was used to define our sample grid of approximately 1 mile by 1 mile, WA DNR, 1997.

Forest Class layer derived from 1:1000 and 1:2000 scale orthophotos and/or aerial photos by Tim Gregg and Terry Curtis, Resource Mapping Section, WA DNR, 1997.

East/West Riparian Management Zones (RMZ). Created for Forest Practices Division by Bill Ware, 1992. This east-west dividing line is described in the Washington forest practices rules, Title 222 WAC, WA DNR, 1995.

2. Software and Hardware: A SUN Sparc20 workstation running ARC/INFO version 7.01 and approximately 10 gigabytes of disk space were dedicated to this project. An HP 650C Color Ink Jet plotter produced the maps used by both WA DNR and Washington Department of Ecology personnel.

3. Data Preparation and Processing: Creating BASEDATA: Ownership layers MPL and PFL_OWN were combined with slope, LULC, and PLS to produce a layer called BASEDATA. Then, using the RMZ layer, BASEDATA was divided into 2 layers: EAST and WEST.

Hydro Processing: The WA DNR Hydro database was split into six regions (three in the east and three in the west) due to file size and processing limitations. In each of these regions the Type 3, Type 4, and Type 5 streams were buffered to the left side of the arc then separately to the right side. This was done to preserve both the ownership attributes on each side of the stream where the stream shared the ownership boundary, as well as preserve the water type that created the buffer. A buffer distance of twenty-five feet on each side of the stream was used in western Washington and thirty feet on each side of the stream in eastern Washington. The resulting layers were then put back together into one layer called HYDROBUF. Finally, an ARC/INFO IDENTITY was completed using HYDROBUF on BASEDATA to create a layer called HYDROBASE.

Sample Population: Before selecting the thirty random sections from each half of the state, HYDROBASE was filtered to leave only PLS sections with Type 3, 4, and 5 stream buffers that contained private forested lands and were 0%-20% in slope. The result of this filtering was our sample population that we ran our random sample on. Using ARC/INFO s RESELECT RANDOM function in ARCPLOT we selected out sixty of the remaining PLS sections (thirty in the east and thirty in the west) to give us our sample sets.

Photo Interpretation: Sixty maps were printed, one for each randomly selected section, at a scale of 1:1000 and 1:2000 so that photogramatrists in resource mapping section could perform photo-interpretation at the same scale as the photos and orthophotos. They classified the forest type within the stream buffers into eleven categories:

Brush/recent clear cut (eastern

Washington data only) 0-5 years

Reproduction 5-15 years

Conifer Pole timber 15-30 years

Conifer Saw timber 30-100 years

Over mature conifer timber 100 +

Hardwood pole 15-30 years

Hardwood saw 30 - 60 years

Over mature hardwood 60+

Mixed conifer/hardwood pole (30% - 70%)

Mixed conifer/hardwood saw (30% - 70%)

Mixed conifer/hardwood over mature (30% - 70%)

Forest class densities were not considered when forest typing was done. The photo interpreted forest class information was then entered into a GIS layer for each section and reports were generated.

4. Maps: A set of sixty maps was plotted at a scale of 1:4800 that included: Ownership, slope, hydro features, transportation routes, county boundaries, PLS, industrial ownership boundaries, and highlighted stream buffers (with stream length) that met our filter criteria mentioned above. Clear overlays of forest class information within the stream buffers were plotted at the same scale and all these maps were delivered to ecology for further field work and analysis.

B. County Data on Parcels: Ecology collected county assessor data on affected parcels in the sixty sample sections. Affected parcels were hand drawn onto the maps. Affected parcels included the parcels with streams that may be reclassified or parcels which may have a piece of buffer. Researchers also gathered parcel data on acreage, dollar value, zoning, current land use, ownership and taxes. Each county had different types of data accessible to the public. The most consistently available data were the acreage, ownership, and current assessed valuation. Some parcels are used either for a residence, for commerce or for agriculture. These uses have a significant impact on valuation. The parcel data used for this study was collected from each county assessor office across the state. The researchers traveled to the various jurisdictions with Department of Natural Resources (DNR) section maps (see appendix 1) marking streams and new type three streams in that section. Data collection required matching up the section maps and official county maps. The DNR maps were used in conjunction with the assessor's maps to locate parcel numbers. From there, information about the parcel was obtained from the assessor's records. After locating the parcels on the assessor's maps, a rough sketch was made on the researcher's map.

The parcel data formed the case basis for all other data. For each parcel, a separate sheet was recorded based on the assessor's information. Data was recorded on the survey instrument at the end of this appendix. No data was collected for parcels that did not have at least a piece of mapped buffer falling within the parcel boundary. The plot number for each parcel was used as the specific case number. The categories of data collected included the township, range, section, and map ID number for each parcel. Additionally, landowner information (names and addresses) were recorded. The last date of sale, the acreage, zoning, land usage and type of timber were also included. Other categories had to do with the land at the time of the cut and any changes in zoning that had occurred.

The data collected was limited by the varying quality of information available at each assessor's office. Some of the counties had computerized their information which facilitated the process. However, even with the computerized information the procedure was limited by the fact that the records kept did not contain data which was uniform across counties. For example, most counties had tax record information, although some did not. Additionally, some had data about the type of forest and timber on the land while most did not. Complete information was not generally available for most of the counties in the sample.

The following data was collected:

RA Name Date

County Township

Range Section Number

Plot number or tax ID Map code

code from the county UBI number if available

Tax codes

Owners name, address

Tax status (are all the taxes paid up? if not what is owed?)

Current valuation

Last date of sale and price

Number of acres in the plot

Approximate percentage of the plot affected by the buffer

Any information on taxes paid at the time of a cut

Zoning code (is it in one of the reduced tax categories)

Type of forest/timber if available

Any existing county limitations (e.g. classed as a sensitive area?)

Are there any "improvements" on the plot (house, garage, well, equipment)?

Were there indications of land use change?

Date

Withdrawal from timber tax assessment of the land

Withdrawal from open space assessment of the land

Subdivision of the land into smaller parcels

Other notes in the file(s)

The information was entered into an EXCEL spreadsheet. The parcels were the case basis for the data. Other data from on the vegetation, road crossings, the value of the timber was added to the parcel data.

Timber Values: The Department of Revenue tax tables were used to estimate the value of the timber. Values for Eastern Washington Conifer prices were estimated by averaging DOR values for Douglas Fir, True Firs, Lodgepole Pine, Ponderosa Pine, and Cedar. Western Washington conifer prices were estimated by averaging DOR values for Douglas Fir, Red Cedar and Hemlock. Low and high values were estimated by using close and distant haul zone values. Staff assumed that: DOR class 1 timber corresponded with the over mature vegetative types, DOR class 2 and 3 timber corresponded with the saw timber vegetative types, and that DOR class 4 timber corresponded with the pole vegetative types. This data was combined with the photo interpreted data provided by DNR overlays and the board feet estimates provided by DNR (see Table 4).

Roads, Streams and Stream Crossings: After the parcels were drawn on the DNR maps the number of places where roads crossed through or into the new buffered areas was tallied. The researchers also estimated the percentage of each parcel severed by a new buffer. Finally, the number of feet of stream with new buffers was calculated. Ecology staff used this to calculate the percentage of the parcel that would be in the new buffered zone.

Using the maps DNR provided in conjunction with county maps ecology noted road crossings and portions of parcels that would be inaccessible under the proposed rule amendments for each affected parcel.

C. Cost Data: Potential costs from the rule include building extra road, building a better stream crossing, loss of timber sales and/or doing a survey to reclassify a stream.³⁵ This analysis assumes that the landowner will choose the option that creates the smallest loss. For example, if the value of the timber is greater than the cost of building a stream crossing, researchers assumed that the owner will opt to harvest the timber. Thus, the loss of the timber is the maximum cost.

The cost of road building and stream crossing construction was based on confidential discussions with contractors, an industrial source and on costs for the Department of Natural Resources.

The value of the timber was calculated based on its age and vegetation class. The following values were used to estimate the board feet for each class:

[Open Style:Columns Off]

[Open Style:Columns On]

The Table 5 dollar values were estimated based on the dollar value of board feet by species in the current Department of Revenue stumpage tax tables. Species and quality level for the base data were chosen based on the aged class categories listed below. High and low values were based on the haul zone. Quality values were averaged since the photo data does not allow quality estimates.

[Open Style:Columns Off]

[Open Style:Columns On]

D. Problems in the Data Set: In some cases the parcel is used as residential or has a vacation cabin on it. We consider it unlikely that the timber on such parcels will be harvested. The information from these parcels has been included because the owner may wish to harvest all or part of the timber on the site at some time in the future.

Different counties had very different property data. Other than ownership and acreage the data was not consistent enough to use.

Mapping was not sufficient to determine whether there were obvious positions for roads and crossings or whether the topography would support suspension systems or flying the logs.

E. Assumptions: Given the complexity of the impacts it was necessary to make the following assumptions.

All harvest losses are based on current prices and the costs are assumed to occur this year. There is no extrapolation of growth rates for the forest and no estimation of the timing of future cuts. This tends to overestimate the cost of the rule.³⁶

Owners are expected to forego harvesting separated portions of their parcels if the value of the timber is less than the $15,000 estimated cost of a 16% slope stream crossing on a 4-foot stream. It is not clear whether this over estimates or under estimates the cost of the rule. There are many for whom the cost may be lower and many for whom costs may be higher.

Upland timber is expected to have the same set of species as are identified in the RMZ.

Suspension of logs is either not economical or physically impossible. This will tend to overestimate the cost of the rule.³⁷

Owners will harvest no timber in the buffers. This will tend to overestimate the cost of the rule.

Owners of timber are expected to be unable to purchase easements to move timber through adjacent property owned by other people or firms.

Eastern Washington conifer prices were characterized by Department of Revenue tables for Douglas-fir, true firs, lodgepole pine, ponderosa pine, and cedar. Western Washington conifer prices can be characterized by Department of Revenue tables for Douglas-fir, red cedar and hemlock. Averages were used.

Parcels with a structure and with less than two acres of timber will fall within the one hundred fifty foot exemption.

¹ This exemption was incorporated into the data. Parcels with less than two acres, which had a residence or commercial building were taken out of the sample. The disproportionate impact was reduced only slightly. Large companies were unaffected.

² Water Types 1, 2, 3, 4, and 5 refer to streams segments with different characteristics and presence or absence of fish. Depending on the water type designation, a stream segment will be afforded different levels of protection, primarily through the use of buffers.

³ For western and eastern Washington see WAC 222-30-020 (3) or (4) respectively.

⁴ See WAC 222-38-020 (3) and (5).

⁵ See WAC 222-30-060(1).

⁶ See WAC 222-24-025(7).

⁷ Technically with fifty or fewer employees they are small businesses but they are also in the largest 10% of businesses. There were very few companies with data on employment that was publicly available. In order to assure that the results of the small business economic impact statement were not influenced by this lack of data ecology used other factors in addition to employment to compare impacts. (See Table 1.)

⁸ TFW means timber, fish and wildlife. It is a consensus based public process where parties involved and interested in forestry assess issues. Based on their assessments they make recommendations to the Forest Practices Board and ecology. The stream typing was recommended by TFW.

⁹ WAC 222-16-030.

¹⁰ Chapter 43.21H RCW.

¹¹ RCW 34.05.328.

¹² Chapter 19.85 RCW.

¹³ An industry is defined by a four digit Standard Industrial Classification Code.

¹⁴ Disproportionate impact is usually measured based on cost per unit of employment or cost per unit of sales. Sales in this case are proportionate to the value of the timber harvest. Size of average annual sales is proportionate to the amount of harvestable timber that is owned. We have, therefore, used the loss per acre as the measure of disproportionate impact.

¹⁵ A portion of a parcel is considered to be separated if a stream crossing through a buffered area is required in order to harvest the timber. If it is not profitable to harvest it because of the cost of crossing the new buffer, the area is economically separated also, that is, the value of the timber is lost to the owner.

¹⁶ This figure is based on the sample. Formula (all buffer area) /(area of sections).

¹⁷ See Table 1 column 8 for average % impacts of the buffer and column 9 for average % impacts with both a buffer and separated land.

¹⁸ Ecology only collected data on affected lands. No data was collected on unaffected parcels.

¹⁹ In the sample 0.9% of the cases have buffer for 100% of the land.

²⁰ See Table 1 column 8 for average % impacts of the buffer and column 9 for average % impacts with both a buffer and separated land.

²¹ Existing culverts for stream crossings will not have to be removed and replaced.

²² The SIC code assigned to an industry is based on the primary business for any given company. Only one SIC code is assigned to an individual business.

²³ This list may not be all inclusive and some industries identified may not actually be impacted.

²⁴ See RCW 19.85.040(1).

²⁵ Most of the literature on property taxes holds that the most of the present value of a property tax increase or reduction accrues to the owner of the property at the time that the tax change takes place. This may not be true for this case because the loss of some timber may have little affect on the value of lands in other uses.

²⁶ This option was not addressed because it was impossible to tell whether it is physically feasible from the maps. Eliminating the option from consideration may in some cases raise the estimated costs above their actual levels.

²⁷ There is actually a wide range of possible values. The maximum range is listed in Table 4.

²⁸ "Low" is the lowest private sector estimate, "medium" is a DNR estimate, and "high" is the highest private sector estimate.

²⁹ Estimates range from $700 to $1,000 per 100 feet.

³⁰ See RCW 19.85.030(3).

³¹ WAC 222-30-20 [222-30-020] (7)(a).

³² This exemption was incorporated into the data. Parcels with less than two acres, which had a residence or commercial building were taken out of the sample. The disproportionate impact was reduced only slightly. Large companies were unaffected.

³³ Internal DNR procedure.

³⁴ 85% of the new buffered stream feet in this sample.

³⁵ This latter is only a cost for the industrial land owners.

³⁶ If the growth rate of the value of stumpage increases to a point greater than the return on capital this assumption would no longer overestimate the costs of the rule. This may happen if prices increase rapidly, if trees are in the most rapid phase of their growth cycle, or if interest rates fall.

³⁷ There was insufficient data on the parcels to make estimates based on this option.

A copy of the statement may be obtained by writing to Forest Practices Board, Recording Secretary, Department of Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia, WA 98504-7012, phone (360) 902-1413, FAX (360) 902-1730.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption.

Hearing Location: Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA, on November 12, 1997, at 5 p.m.

Assistance for Persons with Disabilities: Contact Forest Practices Board Secretary, (360) 902-1413, by October 1, 1997, TDD (360) 902-1431.

Submit Written Comments to: Judith Holter, Department of Natural Resources, Forest Practices Division, FAX (360) 902-1784, by November 30, 1997.

Date of Intended Adoption: December 10, 1997.

May 1, 1997

Jennifer M. Belcher

Commissioner of Public Lands

AMENDATORY SECTION (Amending WSR 92-15-113, filed 7/21/92, effective 8/21/92)

WAC 222-12-090 Forest practices board manual. When approved by the board the manual serves as an advisory technical supplement to these forest practices regulations. The department, in cooperation with the departments of fisheries, wildlife, agriculture, ecology, and such other agencies, affected Indian tribes, or interested parties as may have appropriate expertise, is directed to prepare, and submit to the board for approval, revisions to the forest practices board manual. The manual shall include:

(1) Method for determination of adequate shade requirements on streams needed for use with WAC 222-30-040.

(2) The standard methods for measuring channel width, stream gradient and flow which are used in the water typing criteria WAC 222-16-030.

(3) A chart for establishing recommended permanent culvert sizes and associated data.

(4) Guidelines for clearing slash and debris from Type 4 and 5 Waters.

(5) Guidelines for landing location and construction.

(6) Guidelines for determining acceptable stocking levels.

(7) Guidelines for calculating average widths of riparian management zones.

(8) Guidelines for wetland delineation.

(9) Guidelines for wetland replacement or substitution.

(10) A list of nonnative wetland plant species.

(11) The standard methodology, which shall specify the quantitative methods, indices of resource conditions, and definitions, for conducting watershed analysis under chapter 222-22 WAC. The department, in consultation with Timber/Fish/Wildlife's Cooperative Monitoring, Evaluation and Research Committee (CMER), may make minor modifications to the version of the standard methodology approved by the board. Substantial amendments to the standard methodology requires approval by the board.

(12) A list of special concerns related to aerial application of pesticides developed under WAC 222-16-070(3).

(13) Guidelines for determining fish use for the purpose of typing waters under WAC 222-16-030.

[Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-113, 222-12-090, filed 7/21/92, effective 8/21/92. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), 222-12-090, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), 222-12-090, filed 11/16/87, effective 1/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), 222-12-090, filed 8/3/82, effective 10/1/82; Order 263, 222-12-090, filed 6/16/76.]

AMENDATORY SECTION (Amending WSR 94-01-134, filed 12/20/93, effective 1/1/94)

WAC 222-16-030 Water typing system. *The department in cooperation with the departments of fisheries, wildlife and ecology, and in consultation with affected Indian tribes shall classify streams, lakes and ponds and prepare stream classification maps showing the location of Type 1, 2, 3 and 4 Waters within the various forested areas of the state. Such maps shall be available for public inspection at region offices of the department. The waters will be classified using the following criteria. If a dispute arises concerning a water type the department shall make available informal conferences, which shall include the departments of fisheries, wildlife and ecology, and affected Indian tribes and those contesting the adopted water types. These conferences shall be established under procedures established in WAC 222-46-020.

*(1) "Type 1 Water" means all waters, within their ordinary high-water mark, as inventoried as "shorelines of the state" under chapter 90.58 RCW and the rules promulgated pursuant to chapter 90.58 RCW, but not including those waters' associated wetlands as defined in chapter 90.58 RCW.

*(2) "Type 2 Water" shall mean segments of natural waters which are not classified as Type 1 Water and have a high fish, wildlife, or human use. These are segments of natural waters and periodically inundated areas of their associated wetlands, which:

(a) Are diverted for domestic use by more than 100 residential or camping units or by a public accommodation facility licensed to serve more than 100 persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type 2 Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

(b) Are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type 2 Water upstream from the point of diversion for 1,500 feet and tributaries if highly significant for protection of downstream water quality;

(c) Are within a federal, state, local, or private campground having more than 30 camping units: Provided, That the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit, trail or other park improvement;

(((c))) (d) Are used by substantial numbers of anadromous or resident game fish for spawning, rearing or migration. Waters having the following characteristics are presumed to have highly significant fish populations:

(i) Stream segments having a defined channel 20 feet or greater in width between the ordinary high-water marks and having a gradient of less than 4 percent.

(ii) Lakes, ponds, or impoundments having a surface area of 1 acre or greater at seasonal low water.

(((d))) (e) Are used by salmonids for off-channel habitat. These areas are critical to the maintenance of optimum survival of juvenile salmonids. This habitat shall be identified based on the following criteria:

(i) The site must be connected to a stream bearing salmonids and accessible during some period of the year; and

(ii) The off-channel water must be accessible to juvenile salmonids through a drainage with less than a 5% gradient.

*(3) "Type 3 Water" shall mean segments of natural waters which are not classified as Type 1 or 2 Water and have a moderate to slight fish, wildlife, and human use. These are segments of natural waters and periodically inundated areas of their associated wetlands which:

(a) Are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type 3 Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

(b) Are used by significant numbers of anadromous or resident game fish for spawning, rearing or migration. Guidelines for determining fish use are described in the Forest Practices Board Manual. If fish use has not been determined:

(i) Waters having the following characteristics are presumed to have significant anadromous or resident game fish use:

(((i))) (A) Stream segments having a defined channel of ((5)) 2 feet or greater in width between the ordinary high-water marks in Western Washington; or 3 feet or greater in width between the ordinary high-water marks in Eastern Washington; and having a gradient ((of less than 12)) 16 percent ((and not upstream of a falls of more than 10 vertical feet)) or less;

(B) Stream segments having a defined channel of 2 feet or greater in width between the ordinary high-water marks in Western Washington; or 3 feet or greater in width between the ordinary high-water marks in Eastern Washington; and having a gradient greater than 16 percent and less than or equal to 20 percent; and having greater than 50 acres in contributing basin size in Western Washington; or greater than 175 acres in contributing basin size in Eastern Washington based on hydrographic boundaries;

(ii) The department shall waive or modify the characteristics in (i) above where:

(A) Waters have confirmed, long term, naturally occurring water quality parameters incapable of supporting anadromous or resident game fish;

(B) Snowmelt streams have short flow cycles that do not support successful life history phases of anadromous or resident game fish. These streams typically have no flow in the winter months and discontinue flow by June 1; or

(C) Sufficient information about a geographic region is available to support a departure from the characteristics in (i), as determined in consultation with the department of fish and wildlife, department of ecology, affected tribes and interested parties.

(((ii))) (iii) Ponds or impoundments having a surface area of less than 1 acre at seasonal low water and having an outlet to an anadromous fish stream.

(((c) Are used by significant numbers of resident game fish. Waters with the following characteristics are presumed to have significant resident game fish use:

(i) Stream segments having a defined channel of 10 feet or greater in width between the ordinary high-water marks; and a summer low flow greater than 0.3 cubic feet per second; and a gradient of less than 12 percent.

(ii))) (iv) For resident game fish ponds or impoundments having a surface area greater than 0.5 acre at seasonal low water.

(((d))) (c) Are highly significant for protection of downstream water quality. Tributaries which contribute greater than 20 percent of the flow to a Type 1 or 2 Water are presumed to be significant for 1,500 feet from their confluence with the Type 1 or 2 Water or until their drainage area is less than 50 percent of their drainage area at the point of confluence, whichever is less.

*(4) "Type 4 Water" classification shall be applied to segments of natural waters which are not classified as Type 1, 2 or 3, and for the purpose of protecting water quality downstream are classified as Type 4 Water upstream until the channel width becomes less than 2 feet in width between the ordinary high-water marks. Their significance lies in their influence on water quality downstream in Type 1, 2, and 3 Waters. These may be perennial or intermittent.

*(5) "Type 5 Water" classification shall be applied to all natural waters not classified as Type 1, 2, 3 or 4; including streams with or without well-defined channels, areas of perennial or intermittent seepage, ponds, natural sinks and drainageways having short periods of spring or storm runoff.

*(6) For purposes of this section:

(a) "Residential unit" means a home, apartment, residential condominium unit or mobile home, serving as the principal place of residence.

(b) "Camping unit" means an area intended and used for:

(i) Overnight camping or picnicking by the public containing at least a fireplace, picnic table and access to water and sanitary facilities; or

(ii) A permanent home or condominium unit or mobile home not qualifying as a "residential unit" because of part time occupancy.

(c) "Resident game fish" means game fish as described in the Washington game code that spend their life cycle in fresh water. Steelhead, searun cutthroat and Dolly Varden trout are anadromous game fish and should not be confused with resident game fish.

(d) "Public accommodation facility" means a business establishment open to and licensed to serve the public, such as a restaurant, tavern, motel or hotel.

(e) "Natural waters" only excludes water conveyance systems which are artificially constructed and actively maintained for irrigation.

(f) "Seasonal low flow" and "seasonal low water" mean the conditions of the 7-day, 2-year low water situation, as measured or estimated by accepted hydrologic techniques recognized by the department.

(g) "Channel width and gradient" means a measurement over a representative section of at least 500 linear feet with at least 10 evenly spaced measurement points along the normal stream channel but excluding unusually wide areas of negligible gradient such as marshy or swampy areas, beaver ponds and impoundments. Channel gradient may be determined utilizing stream profiles plotted from United States geological survey topographic maps.

(h) "Intermittent streams" means those segments of streams that normally go dry.