WSR 97-23-062

PROPOSED RULES

DEPARTMENT OF ECOLOGY

[Order 97-06--Filed November 18, 1997, 3:55 p.m.]

Continuance of WSR 97-15-130.

Preproposal statement of inquiry was filed as WSR 97-08-038.

Title of Rule: Revise stream typing rules adopted by reference via chapter 173-202 WAC, Forest practices rules and regulations to protect water quality.

Purpose: Modify forest practices rules defining Type 2 and 3 waters in WAC 222-16-030 (adopted by reference by chapter 173-202 WAC), and define requirements for Forest Practices Board (FPB) manual.

Other Identifying Information: Emergency rule relative to this proposal was adopted by ecology on February 14, 1997 (WSR 97-05-039). Forest Practices Board filed companion emergency proposal (WSR 97-05-033).

Statutory Authority for Adoption: RCW 90.48.420, 76.09.040, [76.09.]050 and chapter 34.05 RCW.

Statute Being Implemented: Chapter 90.48 RCW.

Summary: Amend WAC 173-202-020 to adopt by reference changes in WAC 222-12-090 and 222-16-030.

Reasons Supporting Proposal: Field checks and studies showed many streams were mistyped based on physical characteristics. Streams with fish were classed as not having fish. Proposed rule would update stream typing to reflect current state of knowledge and provide intended protection. Proposal will be coordinated with Forest Practices Board staff to the extent practicable.

Name of Agency Personnel Responsible for Drafting: Doug Rushton, 300 Desmond Drive, Lacey, WA 98503, (360) 407-6180; Implementation and Enforcement: Dick Wallace, 300 Desmond Drive, Lacey, WA 98503, (360) 407-6489.

Name of Proponent: Department of Ecology, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposal based on consensus recommendation from timber, fish, wildlife participants.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Continuance necessary to reschedule hearing and proposed adoption dates.

The proposed rule established presumptions for determining fish use in the absence of field verification. Current knowledge about fish use in streams and habitat is needed in forest practices and related water quality rules so appropriate riparian and aquatic protection is provided. Recent studies have shown the need to upgrade some Type 4 (nonfish bearing) streams to Type 2 or 3 (fish-bearing). The proposed rules are necessary to protect public resources, specifically fish, by ensuring riparian values are being applied to fish-bearing streams and that water quality upstream of fish hatchery intakes is protected. The proposal 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 and ecology as a first step in developing a comprehensive strategy to address fish, water quality, and a functional water typing system. TFW is continuing to develop a more comprehensive proposed rule that will also meet federal water quality requirements.

Proposal Changes the Following Existing Rules: WAC 222-16-030, provides protection of water quality upstream of fish hatcheries; stream gradient percentages changes 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: Fifty acres in western Washington and one hundred seventy-five acres in eastern Washington; and the Department of Natural Resources is given authority to wave presumption of fish use based on three specific criteria.

Ecology coadopts by reference through chapter 173-202 WAC, Washington Forest Practices rules and regulations to protect water quality (specifically WAC 173-202-020).

A small business economic impact statement has been prepared under chapter 19.85 RCW. Please refer to WSR 97-20-107.

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, or FAX (360) 902-1784.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. Considered to be a significant legislative rule.

Hearing Location: Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA, on January 26, 1998, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Forest Practices Board Secretary, (360) 902-1413, by January 15, 1998, TDD (360) 902-1431.

Submit Written Comments to: Doug Rushton, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, FAX (360) 407-6426, by January 30, 1998.

Date of Intended Adoption: February 2, 1998.

November 9, 1997

Daniel J. Silver