WSR 98-21-015

PROPOSED RULES

FOREST PRACTICES BOARD

[Filed October 12, 1998, 4:48 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-16-099.

Title of Rule: Amendments to forest practices rules, Title 222 WAC.

Purpose: Current forest practices rules are not providing adequate protection for salmon and other public resources. The Forest Practices Board and the Department of Natural Resources face many new resource protection challenges, the most significant of which are the current and proposed listings of salmonids under the federal Endangered Species Act (ESA) and water quality-limited waters under the federal Clean Water Act (CWA).

At its September 22, 1998, meeting the Forest Practices Board approved the following goals for this rule package:

1. To provide compliance with the Endangered Species Act for aquatic and riparian-dependent species;

2. To restore and maintain riparian habitat on state and private forest lands to support a harvestable supply of fish;

3. To meet the requirements of the Clean Water Act for water quality on state and private forest lands; and

4. To keep the timber industry economically viable in Washington.

The Forest Practices Board is conducting rule making on a comprehensive package of new and revised rules. Timber, fish and wildlife (TFW) participants have been negotiating some of the issues covered by this proposal, but have not yet reached consensus. Should a consensus be reached during this rule making process, the proposal may be modified to include their recommendation as an alternative.

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: Modify forest practices rules (Title 222 WAC) to incorporate new public resource protection requirements. Categories of rules include riparian protection for fish-bearing and nonfish-bearing streams; water typing; wetlands; Class IV-Special; SEPA guidance; application procedures; roads; slope stability; forest chemicals; enforcement; monitoring; adaptive management; watershed analysis.

Citation of existing rules amended by this order: WAC 222-08-035 Continuing review of forest practices rules, 222-12-045 Adaptive management, 222-12-090 Forest practices board manual, 222-16-010 General definitions, 222-16-030 Water typing system, 222-16-050 Classes of forest practices, 222-20-010 Applications and notifications--Policy, 222-20-020 Application time limits, 222-20-070 Emergency forest practices plan, 222-22-010 Policy-watershed analysis, 222-22-030 Qualification of analysts, 222-22-040 Watershed prioritization, 222-22-050 Level 1 watershed assessment, 222-22-060 Level 2 watershed assessment, 222-22-070 Prescription recommendation, 222-22-090 Use and review, 222-24-010 Policy-road construction, 222-24-020 Road location and design, 222-24-030 Road construction, 222-24-035 Landing location and construction, 222-24-040 Water crossing structures, 222-24-050 Road maintenance, 222-24-060 Rock quarries, etc., 222-30-010 Policy-timber harvesting, 222-30-020 Harvest unit planning and design, 222-30-070 Tractor and wheeled skidding systems, 222-38-020 Handling, storage, and aerial application of pesticides, 222-38-030 Handling, storage, and aerial application of fertilizers, 222-46-060 Civil penalties, and 222-46-065 Base penalty schedule.

New sections added: WAC 222-10-020 SEPA policies for certain forest practices within 200 feet of a Type S water, 222-10-030 Class IV-Special construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas or timber harvest on unstable landforms or slide prone areas SEPA policies, 222-12-044 Cooperative opportunities, 222-20-015 Multi-year permits, 222-22-035 Watershed screening, 222-22-065 Review of assessments, 222-22-075 Monitoring, 222-22-076 Restoration, and 222-46-055 Compensation for resource damages.

See rule text for sections marked .* indicating coadoption by the Department of Ecology.

Reasons Supporting Proposal: Modifications to rules are needed to better protect Washington's public resources. See Purpose above.

Name of Agency Personnel Responsible for Drafting: Judith Holter, 1111 Washington Street S.E., Olympia, WA 98501-7012, (360) 902-1412; Implementation and Enforcement: Howard Thronson, 1111 Washington Street S.E., Olympia, WA 98501-7012, (360) 902-1416.

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 rule:

Revises the water typing system used to identify fish-bearing and nonfish-bearing streams so that more adequate protection is provided for fish habitat.

Provides a five-year forest practices permit for landowners who have completed watershed analysis or who have submitted an application for a road maintenance and abandonment plan that will take longer than two years to implement.

Adds shorelines of the state to the Class IV-Special list and gives SEPA guidance for the applicant to follow.

Expands the Class IV-Special SEPA trigger for unstable slopes, gives SEPA guidance, and adds twenty-four definitions related to unstable slopes.

Revises riparian management zone requirements for eastern and western Washington, and includes options for possible buffer widths.

Presents options for variable buffer widths for aerial application of pesticides and adds best management practices to the Forest Practices Board manual.

Adds best management practices related to roads to the FPB manual; revises requirements for road location and design, relief drainage structures, water crossing structures, and road maintenance and abandonment.

Makes watershed analysis a more public process; allows DNR to write the prescriptions if the prescription team does not reach consensus; requires a prescription monitoring plan.

Enables DNR to develop a schedule of penalties for compensation of resource damages where there has been material damage to public resources; adds a base penalty of $10,000 for operating without an approved forest practices permit.

Expands adaptive management requirements by formally establishing the cooperative monitoring, evaluation, and research (CMER) committee of TFW and charging them with implementing adaptive management based on scientific findings; encourages cooperative opportunities for working with the board.

The anticipated effects for these rules include improved water quality and fish habitat, as well as better overall protection of public resources while maintaining a viable forest products industry.

Proposal Changes the Following Existing Rules:

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

Small Business Economic Impact Statement

Proposed Forest Practices Rules (Title 222 WAC)

Implementing the Forestry Module

Proposed for coadoption by Forest Practices Board and Department of Ecology

October 12, 1998

Part 1: Background Information and Rule Proposal

The Forestry Module: The Forest Practices Board is charged with establishing rules to protect the state's natural resources while maintaining a viable forest products industry. Forest practices rules that pertain to water quality are coadopted by the Department of Ecology.

The Forest Practices Board and the Department of Ecology are considering making changes to the rules that would implement recommendations that timber, fish and wildlife (TFW) participants were negotiating since November 1997, called the forestry module. TFW is comprised of six caucuses: Federal agencies, Indian tribes, state agencies, counties, the environmental community, and the timber industry. The environmental caucus withdrew from the negotiations in September 1998, but the other five caucuses are continuing to work on a forestry module agreement.

The board accepted TFW's goals¹ for the forestry module on September 22, 1998:

1. To provide compliance with the Endangered Species Act for aquatic and riparian-dependent species on nonfederal forest lands;

2. To restore and maintain riparian habitat on nonfederal forest lands to support a harvestable supply of fish;

3. To meet the requirements of the Clean Water Act for water quality on nonfederal forest lands; and

4. To keep the timber industry economically viable in the state of Washington.

¹ Progress Report from TFW to the Forest Practices Board by Jane Lamensdorf-Bucher, TFW Administrator, August 12, 1998.

Initial Draft of Proposed Rules: This initial draft is a proposal to revise the forest practices rules to implement the forestry module. The draft rule frames the range of options for new state-wide forest practices rules:

These proposed rules are based largely on content of the current TFW negotiations that occurred from November 1997 to September 10, 1998². The proposed rules are a starting point for the permanent rule adoption process while the five TFW caucuses finish negotiations and prepare rule recommendations. It is anticipated that if and when consensus is reached, the TFW rule recommendations will fall largely within the range of these alternatives.

² The environmental caucus officially withdrew from the negotiations on September 10, 1998. The remaining five caucuses are continuing to negotiate the remaining issues.

An agency adopting administrative rules is required by the Regulatory Fairness Act (chapter 19.85 RCW) to analyze disproportionate impacts of the rules on small businesses. This small business economic impact statement (SBEIS) summarizes the analysis conducted in order to comply with the Regulatory Fairness Act requirements for a major component of the initial draft proposed rules, the riparian management zone requirements.

Rule Categories: The following categories of forest practices rules are expected to be included in the final forestry module proposal: Riparian protection for fish-bearing and nonfish-bearing streams, SEPA guidance related to these rules, water typing, wetlands, Class IV-Special forest practice designations, roads, slope instability, pesticides, small landowner issues, enforcement, monitoring, adaptive management, and watershed analysis.

Summary of the Proposed Rules: The riparian management zone (RMZ) proposed rules include separate requirements for western and eastern Washington (WAC 222-30-020 (3), (4)³. The rules are summarized as follows:

³ For actual rule language including several different options, please see Proposed Forest Practices Rules for Implementing the Forestry Module, August 12, 1998, pp. 23-29.

In western Washington, RMZs include:

One hundred foot wide no-harvest and no-ground-based-yarding-equipment zone along fish-bearing waters;

Provision for an alternate plan proposal for harvest within the one hundred foot zone;

Additional seventy-foot zone having a certain number of trees per acre (options of ten and forty are given).

A fifty foot wide no-harvest and no-ground-based-yarding-equipment zone along nonfish-bearing perennial streams plus certain other requirements OR a 2/3 site potential tree height zone.

A thirty foot no-ground-based-yarding-equipment zone along nonfish-bearing seasonal streams OR a 1/2 site potential tree height zone.

Because RMZ width requirements are still being negotiated, the following assumption has been made for this SBEIS: In western Washington, RMZ buffers are one hundred seventy feet along all Type 1-3 waters, and along Type 4 and 5 waters that [are] less or equal to 20% slope. This is likely to overestimate the acres taken up by riparian management zones, because not all streams contain fish up to 20% and because the one hundred seventy foot width does not take into account the fact that some management will take place particularly in the outer zone. Current RMZ rules require twenty-five to one hundred foot buffers along westside streams. No RMZs are required on nonfish-bearing streams under current rules unless required on a site-specific basis, i.e., for unstable slopes. The acres for the proposed rules and the existing rules were calculated and subtracted in order to determine the net impact of the proposed rules.

In eastern Washington, RMZs include:

One hundred foot wide or a distance equal to a site potential tree height, whichever is greater, no-harvest and no-ground-based-yarding-equipment zone along fish-bearing waters;

Provision for an alternate plan for harvest within the one hundred foot zone to address forest health and fire prevention;

A fifty foot wide no-harvest and no-ground-based-yarding-equipment zone along nonfish-bearing perennial streams plus certain other requirements OR a 2/3 site potential tree height zone.

A thirty foot no-ground-based-yarding-equipment zone along nonfish-bearing seasonal streams OR a 1/2 site potential tree height zone.

Because RMZ width requirements are still being negotiated, the following assumption has been made for this SBEIS: In eastern Washington, buffers are one hundred feet along all Type 1-3 waters, and along Type 4 and 5 waters that are less or equal to 20% slope. This is likely to be an overestimate of the impacted acres because not all streams are fish bearing up to a 20% gradient and some management may occur within the one hundred feet. Current RMZ rules require thirty to three hundred foot buffers along eastside fish-bearing streams. No RMZs are required on nonfish-bearing streams under current rules unless required on a site-specific basis. Impacted acres were calculated for both proposed and current rules and subtracted in order to determine the net impact of the proposed rules.

Earlier SBEIS for Proposed Water Type Rules: The Forest Practices Board and ecology began the effort to adopt more effective forest practices rules in November 1996 when the water type emergency rule was adopted. The board accepted TFW's recommendation that the definitions used to determine water types reflect current knowledge about fish use and habitat. The water type emergency rule ensures that riparian rules are being applied to fish-bearing streams. The board and ecology proposed this same rule language as a permanent rule on June 18, 1997, and filed an SBEIS at the same time⁴. Certain parts of that study are included in this SBEIS. The Forestry Module proposed rules include a revised water typing system that provides additional protection to fish-bearing streams.

⁴ Carruthers, C. 1997. Small Business Economic Impact Statement for the Proposed Forest Practices Rule Amendments on Water Typings. Hereafter referred to as the SBEIS on the Water Type Rules.

Part 2: Regulatory Fairness Act (Chapter 19.85 RCW)

Requirements: The Regulatory Fairness Act requires preparation of an SBEIS for proposed rules affecting more than 10% of any one industry. 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 large businesses.

If there is a disproportionate economic impact on small businesses in comparison with large businesses, the act requires that the economic impacts be reduced or that the agency provide reasonable justification for not doing so. Mitigation measures must be both legal and feasible. The act says that to obtain information for the SBEIS, an agency may survey a sample of affected business. Whenever possible, a committee should be appointed under RCW 34.05.310(2) to assist in the accurate assessment of the costs of a proposed rule. (RCW 19.85.030, [19.85.]040).

This SBEIS has been prepared with the assistance of a committee representing concerned stakeholders.

For the Forest Practices Board and ecology's proposed rules, the relevant questions from the Regulatory Fairness Act are:

What are the compliance costs for large and small forest businesses should they decide to harvest timber? and

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

What legal and feasible measures are needed to mitigate disproportionate impacts on small businesses?

In order to conduct the SBEIS to fulfill the requirements of the Regulatory Fairness Act, we have made some basic assumptions and designed a two-phased analytical process.

Two-Phased Analysis: This SBEIS is the first phase of the economic analysis; it focuses on riparian protection requirements because existing data could be used to calculate buffer acreage. This could be analyzed within the limited amount of time available prior to the board and ecology formally proposing the rules.

It is anticipated that the Forest Practices Board and ecology will supplement the initial draft proposed rules with a more comprehensive proposal based on TFW's final negotiations. If TFW does not reach consensus or make a rule recommendation, then the board and ecology will move forward to prepare a supplemental rule proposal. At that time, the second phase of the SBEIS, a more comprehensive analysis of the proposed rules, will be prepared. Also during the course of the rule-making process, the board and ecology will prepare the cost-benefit analysis required for significant legislative rules (RCW 34.05.328).

The study design of the SBEIS is consistent for both phases. The limited time window to file the proposed rules also makes it difficult to conduct an empirical analysis in Phase 1. However, in Phase 2, the SBEIS will analyze a revised version of the proposed rules and use empirical methods in the economic analysis. While we don't expect any significant changes in the conclusions of the analysis between the two phases, the accuracy and reliability of the analytical results will be significantly improved. The key differences of these two phases are outlined as following:

Phase 1:

Focuses on riparian protection requirements.

Uses GIS data at the aggregate level.

Uses analytical data derived from the SBEIS on the Water Type Rules.

Phase 2:

Will include other protection requirements in the revised version of the proposed rule.

Will use GIS data at a detailed level.

Will use individual ownership data that has been newly gathered from county records for the sample analysis to identify small businesses.

Will base most of the analyses on empirical data and first-hand information.

Potentially Affected Industries: 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). 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. SIC code 0811, "Timber Tracts," identifies some large and small forest businesses, but it only contains about one hundred fifty names and therefore does not provide adequate representation for these groups.

All forest landowners and businesses holding timber cutting rights are required to be in compliance with the proposed forest practices rules if their forest parcels contain any type of water defined by the rules. These landowners, timber rights holders or other land-based businesses represent different industries. Many of them are not registered as business owners although this does not exclude them from doing business or investing in land assets. They may also register for future businesses when timber and other commodities pertaining to land become commercially available. Therefore, these businesses are the rule complying community. The industries they represent are affected industries. The affected industries are identified in Appendix 1.

Small Businesses Versus Large Businesses: The Regulatory Fairness Act defines a "small business" as one that has fifty or fewer employees. The analysis of Phase 1 this SBEIS is based on data in the water type SBEIS which states:

"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: 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 companies. In forestry, individuals who own forested land may not act like a "business" until they harvest 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."⁵

⁵ Carruthers, op. cit., p. 6.

Although a few small forest businesses have large landholdings, the vast majority of small businesses have very small landholdings. The average landholding for small forest businesses for Washington and Oregon is about eighty-three acres.⁶ A 1994 United States Forest Service study estimated that one hundred landowners have ownerships greater than 5,000 acres, and their combined holdings equal about 65% of the acreage.⁷ These landowners account for only 0.25% of the total nonindustrial private forest (NIPF) landowners. The same survey revealed that there are approximately 1,000 landowners with ownerships greater than 500 acres. There are approximately 15,000 landowners with ownerships greater than fifty acres. Finally, there are approximately 76,000 landowners with ownership less than fifty acres. Most of the landowners targeted are the landowners with more than fifty acres, but less than 5,000 acres. In Phase 2, small businesses will be identified and grouped based on data gathered from the county records.

⁶ Johnson, R., R. Alig, E. Moore, and R. Johnson. 1997. NIPF Landowners, View of Regulation. Journal of Forestry, January 1997: 23-28.

⁷ Birch, T.W. 1996. Private forest-land owners of the United States, 1994. USDA Forest Service Resource Bulletin NE-Review Draft: Data Tables: west.

The 10% largest businesses are likely to be those integrated forest product firms and they will be identified in Phase 2. In Phase 1, the regulatory impact on the 10% largest industrial businesses is estimated by adjusting the average industrial impacts using derived data from the SBEIS on the water type rules.

Compliance Costs for Businesses: Given the requirements for riparian management zones in the proposed rules, forest businesses would incur costs for complying with the rules when they decide to harvest their timber or sell their land assets because they would have to leave wider buffers along fish-bearing and nonfish-bearing streams. Such costs could be a loss in revenue, a loss in asset, or higher operation costs. In addition, these costs might trigger some other financial difficulties for small business owners and expose them to higher business risks. Even if the land is currently used for recreation or other nontimber uses, the business opportunities for the assets are reduced due to the regulatory constraints. The fair market values of these assets are lower although these paper losses may not be realized in the long term. Whether the regulatory impact is a real loss or a paper loss depends on the management goals, processes and decisions of the businesses. A recent survey shows that businesses' management decisions are significantly affected by expected regulations.⁸

⁸ Johnson, R., R. Alig, E. Moore, and R. Johnson. 1997. NIPF Landowners' View of Regulation. Journal of Forestry, January 1997: 23-28.

Since forest related assets have a long management cycle, the regulatory impacts will take place over a long period. The present value of loss in asset is used as an indicator for regulatory impacts. In other words, the regulatory impacts are the difference between today's market value of a land asset with the proposed rules and today's market value without the proposed regulation. The basic assumption is that all businesses reserve the rights for best use no matter what their current uses are. This gives a maximum estimation of regulatory impact. We have also estimated the probabilities of small businesses being impacted during a certain period.⁹

⁹ See Appendix 7 and Exhibit 4 for details.

Involvement of Concerned Stakeholders: The Regulatory Fairness Act requires the SBEIS to include a description of how the agency will involve small businesses in the development of the rule. While TFW negotiations have not been held in a public forum, key stakeholders have participated in the process. Also, the Forest Practices Board has received regular status reports at its public meetings, which include opportunities for public comment.¹⁰ The board and ecology conducted the thirty-day review required by the Forest Practices Act from August 14 to September 14, 1998, and more than thirty-five written comments were received.

¹⁰ November 12, 1997, February 11, 1998, April 2, 1998, May 13, 1998, and August 12, 1998. All meetings were held in Olympia, Washington. Some were broadcast statewide on TV Washington.

Part 3: Economic Impacts on Small and Large Businesses

The process of the economic assessment includes three steps:

1. Determine if the preparation of an SBEIS is needed to meet the requirements of the Regulatory Fairness Act.

2. If the SBEIS is needed, then determine if there is a disproportionate economic impact on small businesses as a group in comparison with the top 10% of the large businesses. This will help determine if mitigation is needed.

3. If the proposed rule has disproportionate impact on small businesses and mitigation is required, then identify the distributional impacts and probabilities of being impacted among the small businesses with different sizes and management objectives to provide information for the design of appropriate mitigation measures.

Study Design:

Empirical Approach Versus Survey Approach: Two major categories of studies may be used for conducting an SBEIS assessment: The survey approach or empirical approach. A survey approach can include a broad dimension and usually has a quick result. But certain biases may affect the accuracy, validity and reliability of the results. Empirical studies need more detailed data and information and provide more accurate, valid and reliable results. But the empirical approach is usually time consuming and needs more resources. It also heavily depends on data quality. This study primarily uses the empirical approach while incorporating some insights from recent surveys and studies.

Sampling: The primary impact of the proposed rules on businesses is riparian buffers and buffer related land use constraints. There are three major factors that determine the intensity of the impact:

Stream density

Land location

Size of landholding

Stand condition and age class distribution

The sample elements should reflect the above factors. The ideal sample elements would be individual business owners required to comply with the rules. Stratified sampling design should be used for ownership groups with different sized landholdings. However, such individual ownership identities for small business groups are not available from the existing GIS database. To best identify the characteristics of individual businesses under the constraints of our available resources, we randomly selected samples of one square mile sections from private forest lands. The samples were collected separately for eastern Washington and western Washington since the proposed rules are different for these two geographical areas. The sample units and the process of randomization ensure that the characteristics of stream density and land location are well represented. The average impacts of large businesses and small businesses should be well represented by such a design.¹¹

¹¹ See Appendix 3 about determination of sample sizes.

The samples will be further processed to identify individual ownerships by manually checking county records in Phase 2. These individual businesses will be identified and impacts of the proposed rules will be assessed through photo interpretation, map analysis and value assessment. The data obtained will be used to analyze the distribution of regulatory impacts among small businesses with landholdings of different size.

The sampling is designed to capture the impact of large industry businesses as a group. It is not intended to capture the distribution of regulatory impacts among large industrial businesses because no mitigation measures, which might need information about distribution of regulatory impacts, are required by law for large businesses. In Phase 1, the regulatory impacts for the 10% largest industry businesses are estimated by adjusting the average industry impacts using derived data from the SBEIS on the water type rules. In Phase 2, the 10% largest industrial businesses will be identified and the regulatory impacts on them will be estimated.

Data: A complete list of data, process of preparation, and map and photo interpretation will be listed as appendix in Phase 2.

Determining the Need for an SBEIS: According to the Regulatory Fairness Act, an SBEIS is required if the proposed rules affect 20% of all industries or more than 10% of any one of the affected industries. The potentially affected industries are listed in Appendix 1. For the industry "Timber Tracts" (SIC code 0811), as long as any type of water as defined in the rule is present on the land, the business owners will be required to comply with the proposed rule. We estimated that 57% of the NIPF lands will be affected by the proposed rule.¹² Since all large businesses will be affected by the proposed rules, given the natural density of Type 1 to 5 streams, it is certain that far more than 10% [of] business in the industry will be affected by the proposed rules, although some small businesses may not be affected at all due to the size of their landholding.¹³

¹² Appendix 4 provides an estimate of impacted acreage which is 57% of the total sampled acreage.

¹³ The percentage of affected businesses will be determined after identifying ownerships in the samples in Phase 2.

Identifying Disproportionate Impacts:

Primary Sources of Disproportionate Impacts: Due to the differences in geographic/physical features of landholdings and differences in management and finance between large and small businesses, the proposed rules could have a disproportionate impact on small businesses.

Disproportional impacts result primarily from a combination of factors such as stream density, and location and size of landholding. Other factors such as financial status of the owners and economy of scale also contribute to the disproportionate impacts on small businesses.

1. Disproportionate Share in Buffer: Unlike large industrial businesses, some small forest businesses may not be affected by the proposed rules while others may share more skewed impacts from the rules. Due to the small size of landholdings, a parcel may be located between streams and not be impacted by the proposed rules. In other words, there is a disproportionate impact among the small businesses. As Exhibit 1 shows, the small business B is not impacted because no stream runs across this parcel. While other small businesses (A, C and D) have a relatively larger percentage of buffer in their parcels (shaded area) compared to the large land owner (L). These small businesses are likely to be impacted more severely compared to their larger counterparts. For the same reason, the impacts of economically inaccessible acres due to buffer requirement are also skewed for small businesses.

Exhibit 1: Distributional Impacts: Small versus large business.

The same buffer area will be required by the rules. Three small businesses will have the same number of acres in buffer as the large business. However, since small business B is not impacted, the percentage of acres in buffer for the other three small businesses will be higher that [than] that of the large business.

2. Economic Inaccessibility: Another primary source of disproportionate impact of the proposed rules on small businesses is economic inaccessibility. The required buffers will make some of forest acres economically inaccessible because of fragmentation caused by buffers. This impact is likely to take place on small forest parcels.

Exhibit 2 illustrates a hypothetical example of economical inaccessibility. A portion of the parcel C is physically separated by the buffer area (area E). Obviously, small parcels are more likely to be separated by the buffer and the part separated by the buffer might become inaccessible economically due to the small size. Depending on the cost of crossing the buffer, part or all of the value of land area E will no longer be available to the business.

Exhibit 2: Disproportionate Impacts: Lack of economic accessibility.

A buffer area can cut part of a forest off from the road. If the value of the timber in the separated area is too low to cover the cost of appropriate stream crossing, the acres become economically inaccessible. In this hypothetical example, the black line is the road, gray area is the buffer. Small business C's forestland is cut off by the buffer and acres in area E may become economically inaccessible. This is not the case for the large business to the scale of economy.

Estimating Disproportionate Impacts:

1. Estimated Small Businesses Who Are Not Impacted: All forest businesses are required to comply with forest practices rules.¹⁴ As Exhibit 3 shows, some small businesses will not be impacted by the proposed rule at all while others may share disproportionate impacts. For those who are impacted by the rules, some of them will be impacted when the rules become effective while others may not be impacted for a long term if they decide not to harvest timber. The best way to do this is to identify ownerships of each individual parcel in the samples and exclude those parcels without streams. This will be done in Phase 2. In Phase 1, information from samples and derived information from the SBEIS on the water type rules are used to estimate the portion of NIPF land that is not subject to the proposed rules. We estimated that about 47% of small businesses are not impacted by the proposed rules because no streams run through their land parcels. Appendix 4 provides a detailed procedure and the results of estimation. The estimated result will be revised as we obtain data from county records in Phase 2.

Exhibit 3: Regulatory Impacts on Small Businesses.

¹⁴ Forest practices permits are not required for those landowners whose acreage is equal to or less than two acres.

2. Acres in Buffers: One of the primary disproportionate impacts of the proposed rules is the percentage of acres in buffers. Appendix 5 lists the riparian management zone (RMZ or buffers) requirements in the proposed rules for private forest lands for both western Washington and eastern Washington respectively. Since the requirements are different between the two geographical areas, the sampling procedures were performed separately and the results are summarized for eastside and westside.¹⁵ The acres in buffers by ownership group have been estimated by regions. The data is obtained from GIS sampling. The total forest acres of impacted small businesses have been adjusted by excluding the acres of small businesses who are not impacted by the proposed rules. The total acres in buffers of the 10% largest businesses was estimated based on the adjustment of the sample data for the industry. Appendix 5 provides the detailed information about the estimating procedure and estimated results.

¹⁵ Appendix 3 provides the details, see Exhibit A3-2.

3. Estimating Economically Inaccessible Acres: To determine economically inaccessible acres requires GIS analysis and identifying ownership of individual parcels through collecting county tax records.¹⁶ To get a reasonable estimate of the number of economically inaccessible acres in Phase 1, we have made an inference from the data collected from the new samples and derived data from the SBEIS on the Water Type Rules. The estimating procedure and estimated results are described in Appendix 6.

¹⁶ Inaccessible acres will be determined based on county tax records and interpretation of GIS samples in Phase 2 of this SBEIS.

4. Findings: Disproportionate Impacts: Disproportionate impacts for small businesses have been identified and Exhibit 4 provides a summary of the results about the findings. These results will be further refined in Phase 2 as we obtain more detailed data about each individual owner. The impacted acres will be further interpreted for their potentials for commodities and evaluated for their market values. The final regulatory impacts will be expressed as losses in assets although we use acreage as a proxy for assets in Phase 1.

The findings suggest that mitigation measures are needed for the proposed rules because disproportionate impacts of the proposed rules have been identified and small businesses have a higher burden in complying with the rules compared to the 10% largest counterparts.

Exhibit 4: Disproportionate Impacts of the Forestry Module Proposed Rules.

Estimating Net Impacts of the Proposed Forestry Module Rules:

1. Impacts of the Existing Forest Practices Rules: The major impacts of the existing rules include the requirements for buffers and the inaccessible acres caused by buffers. The requirements of buffers of the existing rules for private forest lands are different for both western Washington and eastern Washington.¹⁷ The separated GIS samples were used to estimate the impacts of acres in buffers of the existing forest practices rules by region. The results are summarized by regions and given in Exhibit 5.

¹⁷ Washington Forest Practices Board. 1995. Washington Forest Practices. Department of Natural Resources, Olympia, Washington.

We have used the same procedure to estimate the acres in buffers by ownership group for both the proposed forestry module rules and the existing forest practice rules. While the wider buffers will substantially increase the acres in buffer areas, which implies that more timber in these areas is not harvestable, the assumption for estimating economically inaccessible acres has little change with the proposed rules. The geographic distribution of streams and the ownership boundaries are major factors that determine the inaccessibility of forest acres. While the wider buffers may increase some costs of accessing the acres separated by the buffers, such costs are not substantial compared to the losses of timber values due cut-off by buffers. Therefore, we assume that the wider buffer requires higher costs to build bridges and roads, compared to the medium costs for the existing rules.

Exhibit 5: Impacts of the Existing Forest Practices Rules.

2. Net Impacts of the Forestry Module Proposed Rules:

Exhibit 6 provides an estimate of the net impact of the proposed rules over the existing rules.

Exhibit 6: Net Impacts of the Proposed Forestry Module Rules.

Assessing Distribution of Disproportional Impacts:

The Size of Landholdings and Ownership Objectives: While the average impact of the proposed rule on small businesses is that about 21% of their lands will be constrained for business activities such as timber harvest. The distribution of the regulatory impact is very different among groups of small businesses with different sizes of landholdings and land-use objectives.

The size of landholdings are [is] also correlated to land use objectives. The objectives of land use for small businesses are very different. Some primarily use land for recreation and some use land for producing commodities such as timber. Also, some others use land as an asset class for investment. Due to multiple functions of forestlands, many businesses have multiple and dynamic objectives for their lands from time to time.

The different objectives and sizes of landholdings affect factors of management decisions and the response to business environment such as regulations. Whether or when a small business is impacted by the proposed rules is dependent upon their decisions on land use and the size of their landholdings (Exhibit 7). In general, smaller businesses are more likely to be a land user with recreation as the objective, while larger businesses tend to be timber producers and tree farmers. But many businesses have multiple objectives of land use.

Exhibit 7: Small Business Management Objectives and Average Sizes of Landholdings.

Distributional Impacts: Forestland has a long term management cycle, and the average rotation for NIPF forestland is about 50 - 60 years.¹⁸ Whether timber is matured by a certain year is dependent on rotation, age distribution and size of landholding. Therefore, given the rotation and age distribution, the size of landholding will be a primary factor in making decisions about timber harvest. The larger the landholding, the more consistently forest harvest will take place somewhere on the ownership. Consequently, larger NIPF businesses are impacted by the proposed rules more consistently. On the other hand, the smaller the land parcel, the higher the percentage of land that will be impacted by the rules, although they are impacted less frequently.¹⁹ Exhibit 8 describes the general data and trends of the distributional impacts among small forest businesses with different sizes of landholding.

¹⁸ Lippke, B. And B. Bare. 1997. Viability of the Non-industrial Private Forestry Sector in Washington State.

¹⁹ See Appendix 7 for details about the estimation of distribution impacts among NIPF small businesses.

The disproportionate impacts of the proposed rules on small businesses can vary greatly. While the regulatory constraints impact a larger percentage of land for businesses with smaller parcels, it is less intensive in terms of frequency. Businesses with smaller parcels or nontimber objectives may be less likely to be impacted by the proposed rules for the long term if they never decide to harvest timber. This is often the case. However, when they are impacted by the rule, the impact is more intensive. Therefore, the responses to regulation can be different due to the difference in size of landholding and management objectives. Smallest businesses tend to be less sensitive to the regulations.²⁰ This reflects the fact that these businesses are more recreation-oriented and are less likely to be impacted due to the smaller size of their landholdings.

²⁰ See Lippke's analysis of Johnson et. al. survey (1997) in Lippke, B. And B. Bare. 1997. Viability of the Non-industrial Private Forestry Sector in Washington State.

Exhibit 8: Distributional Impacts Among Small Businesses by Size of Landholding.

Management goals are also an important factor to interpret the impact of the proposed rules on small businesses. A recent survey for small forestry businesses in western Washington and Oregon revealed an interesting fact. When asked how much incentive should be paid for improving wildlife habitat, on average, respondents classified as timber producers demand the greatest incentive payment ($120 per acre per year) followed by respondents classified as multiobjective owners ($107).²¹ Businesses with recreation objectives and other nontimber objectives demand the least incentive payment ($69 and $66 respectively).

²¹ Kline J. And R. Johnson. 1998. U.S. Forest Service, PNW Research Station, Forestry Sciences Laboratory.

Part 4: Mitigation Measures

If a rule has a disproportionate impact, mitigation is required. The mitigation must be legal and feasible in meeting the objectives of the statutes on which the rule is based.

Small landowner landscape plans may be a viable alternative for obtaining more value from the buffers while not impacting the functions being protected. One such option may be committing to a longer rotation for timber harvest so that certain important riparian functions are more likely to [be] provided. These plans could have an emergency exit clause that would allow the small business to deal with family emergencies (such as estate taxes), as long as the longer term of the plan is still valid.

The current rules already provide for some reduction of compliance costs. First, a further exemption is provided if a structure is on the parcel and trees are within 1.5 tree lengths of the structure. These tree[s] are exempt from the rule for safety reasons. Additionally, timber harvests on parcels under two acres do not require forest practices permits.

Exempting small businesses from part or all regulatory requirements is not feasible for these rules because, unlike the owl or murrelet rules recently adopted by the board, all businesses that have streams would be impacted at the time they choose to harvest or sell their property. The small number of small businesses impacted by the owl or murrelet rules justified an exemption from those rules.

Since mitigation measures must be both legal and feasible, they must fit within the authority of the Forest Practices Board and ecology. A system of alternative plans for small businesses is an example. Compensation for small businesses has been discussed in the negotiations, but the Forest Practices Board does not have authority for compensation. This type of mitigation would need approval from the legislature.

Part 5: Conclusions

The SBEIS analysis has been conducted to comply with the Regulatory Fairness Act requirement for the proposed forest practice rules.

1. The proposed rules will cause a disproportionate impact on small businesses. The average impact for small forestry businesses is about 42% higher than that of 10% of largest industrial businesses.

2. The impacts among small businesses are very different. While the impacts on a few largest NIPF businesses are close to that of the 10% largest industrial businesses, most of the small businesses have a higher percentage of their land which is constrained for harvest by the proposed rules. The percentage increases as the size of landholding decreases.

3. Although the smaller parcels have the higher percentage of land in buffers, which implies potential loss in assets, the businesses of these parcels are less likely to harvest timber on their lands because

More businesses in this group have recreation-related objectives which imply giving up or delaying timber harvest.

It is not economically feasible to harvest a smaller parcel frequently.

Therefore, it may take a long time for these small businesses to realize the losses in their assets.

4. Small forestry businesses with timber producing objectives are most likely to be affected by the proposed rules. They will be impacted in both the short term and long term.

5. While smallest or recreational businesses might be less impacted by the proposed rules in the near term, they will be impacted in the long term if they decide to propose a forest practice operation or sell their property.

6. Legal and feasible measures are to be developed to mitigate disproportionate impacts or reduce compliance costs.

Part 6: Public Comment Opportunities

The Forest Practices Board and the Department of Ecology are conducting a full public review of the proposed rules as required by the Administrative Procedure Act (APA) (chapter 34.05 RCW). Joint public hearings that meet APA as well as the State Environmental Policy Act (SEPA) requirements will be held statewide. Hearing dates and locations will be announced with the publication of the draft environmental impact statement. To be notified about hearings, send your name and mailing address to the board at the address listed below.

In the interim, the board takes public comment at each of its meetings which are usually held at the Natural Resources Building, 1111 Washington Street S.E., Olympia. Upcoming regular quarterly meeting dates are: November 10, 1998; February 10, 1999; May 12, 1999; August 11, 1999; and November 10, 1999.

Written comments on the proposed rules may be sent to the board and ecology c/o: Judith Holter, FPB Rules Coordinator, Department of Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia, WA 98504-7012, phone (360) 902-1412, fax (360) 902-1784, e-mail forest.practicesboard@wadnr.gov.

The anticipated adoption date for these rules has not yet been set.

Appendix 1: Potentially Affected Industries

Appendix 2: Small Businesses and NIPF Landowners

In Phase 1, NIPF landowners are assumed to be small businesses. Those NIPF businesses with two or less acres are excluded because they are not required to apply for a forest practices permit. In addition, most of these smallest businesses are residential or recreational users rather than business owners. Some small businesses do not have a UBI (universal business identification). But this does not exclude them from doing business in the future when timber is mature.

Although a few small businesses have large landholdings, the vast majority of NIPF businesses have very small landholdings. The average landholding for small forestry businesses for Washington and Oregon is about eighty-three acres.²² Given the total acres of NIPF lands, we estimated that there are about 54,000 businesses in Washington. The Washington Farm Forestry Association estimates that there are about 30,000 small landowners in Washington.²³ The USDA Forest Service 1994 study estimated that there are about 76,000 landowners who own from one to forty-nine acre parcels. Exhibit A2-1 shows the distribution of these businesses by size of landholding from two hundred thirteen sample data in the SBEIS on the Water Type Rule.

²² Johnson, R., R. Alig, E. Moore, and R. Johnson. 1997. NIPF Landowners, View of Regulation. Journal of Forestry, January 1997: 23-28.

²³ Personal Communication with Nels Hanson, WFFA.

Exhibit A2-1: Small Business Distribution by Size of Landholding.²⁴

²⁴ Data source: Carruthers, C. 1997. Small Business Economic Impact Statement for the proposed Forest Practices Rule Amendments on Water Typing. This table will be recalculated based on new sample data from county records in Phase 2.

A 1994 U.S. Forest Service study estimates that about one hundred landowners have more [than] 5,000 acres and their combined holdings equal about 65% of the total NIPF acreage. Our data shows that for the larger "small" businesses, the regulatory impact on them is close to large businesses.²⁵ Given a fifty year rotation and $10,000 income per acre from harvesting mature timber, about one hundred acres are harvestable annually, and revenue from the harvest is about $1 million. Considering the seasonality of forestry, some of these large businesses (>5,000 acres) are likely to hire 50 or more permanent and seasonal employees, and should be identified and excluded from the small business group. However, since their ownership boundaries are not identifiable in the GIS database, our sample element, although large enough (six hundred forty acres) to well represent the land-based small businesses, did not exclude a few large NIPF businesses. Therefore, the group average impact of small businesses might be understated in Phase 1. The small businesses will be grouped after individual ownerships are identified in Phase 2. In Phase 1, NIPF businesses are assumed to be small businesses.

²⁵ See Exhibit 6 of the main document.

Appendix 3: Determine Sample Sizes for SBEIS

Since the proposed rules have different requirements for private forest lands in western and eastern Washington, and the ownership compositions are also different in the two geographic regions, sample size determination is performed for both western and eastern Washington separately. Samples will be analyzed separately for the two areas and the total economic impacts will be pooled to determine if disproportional impacts exist for small businesses.

1. Statistical Procedure to Determine Sample Sizes

Population for samplings is all private forest lands in Washington. These lands are regulated by the proposed rule. What we are interested in is the difference in regulatory impacts between large and small businesses.

Suppose that

_S .= The proportion of assets of small business owners that will be lost due to the proposed rule

_L .= The proportion of assets of large business owners that will be lost due to the proposed rule

_S - _L .= True disproportional economic impacts on small businesses

P_S .= The estimated proportion of assets of small business owners that will be lost due to the proposed rule

P_L .= The estimated proportion of assets of large business owners that will be lost due to the proposed rule

P_S - P_L .= The estimated disproportional economic impacts on small businesses

Assume that no disproportional economic impacts exist on small business owners, then

Ho .= _S - _L .= 0

We can test for equality of _S and _L with a test statistic given by the difference of P_S - P_L in sample proportions divided by an estimated standard error. The variance of P_S - P_L is

² .= [_S (1 - _S)/A_S .* n] .+ [_L (1 - _L)/A_L .* n]

Where:

n .= sample size

A_S .= Asset proportion of small land owners

A_L .= Asset proportion of large industrial land owners

Z .= [(P_S - P_L) - (_S - _L)]/ has approximately a normal distribution.

Then, Z_/2 .= 1.96 <.= Prob[P_S - P_L]/}> .= Z_/2 .= 1.96 ( .= 0.05) will give a 95% confidence level.

Then we can solve above equation for sample size n.

2. Sample Sizes

We used information from the SBEIS for the water type rules as a base to determine P_S and P_L. Considering the proposed rules include water types 1 to 5, P_S and P_L will be much larger. We assume that P_S and P_L are twice as large as those of the water type rules. As a result, we have

P_S .= 20% and P_L .= 5.5%

Given the asset proportion for both large and small land owners (A_S and A_L), we can estimate sample size n.

Based on DNR's GIS database and using forestland acreage as a proxy asset indicator, then we have

A_S .= 0.37 and A_L .= 0.73

The sample size n is estimated to be ninety-four for western Washington. In other words, ninety-four one square mile sections were selected from private forest lands in western Washington based on the random sampling procedure.

DNR's GIS database contains no ownership information for private forest lands in eastern Washington. United States Forest Service FIA database ownership information²⁶ is used to determine sample size in eastern Washington.

²⁶ Bolsinger et al, 1997. Washington's Public and Private Forests. U.S. Forest Service. PNW-RB-218.

We have

A_S .= 0.73 and A_L .= 0.27

The sample size is estimated to be seventy-three for eastern Washington. In other words, seventy-three one square mile sections were selected from private forest lands in eastern Washington based on the random sampling procedure. Exhibit A3-1 shows the geographic locations of randomized samples.

Exhibit A3-1: Locations of Randomized Samples

3. Summary of Samples

Exhibit A3-2 provides a summary of samples related to the population.

Exhibit A3-2: Summary of the samples.*.

Appendix 4: Estimating Impacted Small Businesses

The population to which the samples apply includes all private forest lands. Since some businesses will not be affected by the proposed rules because no streams run through their lands, we need to exclude the acres owned by these businesses. The best way to do this is to identify ownerships of each individual parcel in the samples and exclude those parcels with no streams. Since it is impossible to obtain the ownership information before the anticipated filing of the proposed rules, the following procedure is used in Phase 1 to estimate the total acreage of small forestry businesses who are not impacted by the proposed rules.²⁷

²⁷ The total acreage of small businesses who are not impacted by the proposed rules will be determined based on county tax records and interpretation of GIS samples in Phase 2 of this SBEIS.

Assume that there is not skewed distribution of streams across all land ownerships and the higher percentage of acres in buffers for impacted small forestry businesses is due to ownership boundaries. Suppose x acres are owned by businesses who are not impacted by the rules. We have

[B_NIPF/(A_NIPF - X)]/[B_IND/A_IND] .= P_NIPF/P_IND .= R

Where:

B_NIPF .= Total acres in buffers of small businesses who are impacted by the rules

A_NIPF .= Total acres of small businesses

B_IND .= Total acres in buffers of industrial businesses

A_IND .= Total acres of industrial businesses

P_NIPF .= Percentage of lands in buffers of impacted small businesses

P_IND .= Percentage of lands in buffers of industrial businesses

R .= Ratio of relative impact--Impacted small businesses versus industrial businesses

Data about acres in buffers and total acres by ownership groups have been obtained from the GIS samples for the proposed rules. The ratio of relative impact between ownership groups was derived from the data of the SBEIS on the water type rules. The percentage of acres in buffers for those impacted small businesses is 1.11 times of the percentage of those industrial businesses. This indicates the ratio of relative impact of impacted small businesses versus industrial businesses is 1.11 or 111%.

The total acreage of lands owned by the small businesses who are impacted under the proposed rules is estimated to be 19,736 acres or 57% of total NIPF lands. The total acreage of NIPF businesses who are not impacted by the rules is estimated as 16,485 acres or 43% of NIPF lands. The total NIPF lands are 34,132 acres.

Appendix 5: Estimating Impacts of Acres in Buffers

One of the major impacts of the proposed rules is the requirements for buffers. Exhibit A5-1 lists the requirements of buffers for private forest lands in both western Washington and eastern Washington. Since the requirements are different between the two geographically distinguished regions, sampling procedures were performed separately and the results are summarized by regions (Appendix 2).

We have used the following procedure to estimate the acres in buffers by ownership group. The data is obtained from GIS sampling. The total forest acres of impacted small businesses have been adjusted by excluding the acres of small businesses who are not impacted by the proposed rules.

P_i .= B_i/A_i

Where:

P_i .= Estimated percentage of acres in buffers for ownership group i resulting from the forestry module rules

B_i .= Acres in buffers for ownership group i resulting from the forestry module rules

A_i .= Total forest acres of businesses in group i who are impacted by the forestry module rules

i .= IND or NIPF representing industrial forestland owners and nonindustrial private businesses respectively.

Exhibit B1 shows the data used and the estimated results from the GIS samples. The total acres in buffer for small businesses due to the proposed rules is estimated as 3,546 acres or about 18% of impacted NIPF forest lands in the samples. The total acres in buffer due to the forestry module rules for industrial businesses in the samples is estimated as 5,834 acres or about 16% of the forest lands under industrial ownership in the samples.

Exhibit A5-1: Impacts of the Proposed Rule: Acres in buffers.

Appendix 6: Estimating Impacts of Lack of Accessibility

Economically inaccessible acres are calculated by GIS analysis and by identifying ownership of individual parcels on county tax records.²⁸ To get a reasonable estimate of the number of economically inaccessible acres in Phase 1, we have made an inference from the data collected from the SBEIS on the Water Type Rules. The population to which the samples applied in the Water Type Rules SBEIS included all private forest lands with Type 4 and 5 waters in Washington. The population of the sample of the forestry module proposed rules includes all private forest lands which have water types 1, 2, 3, 4, or 5. As more water types are included, stream density under the regulation increases. The increase in stream density raises the probability of cutting a parcel into pieces which may become economically inaccessible. We have used the following procedure to estimate the economically inaccessible acres by ownership group.

²⁸ Inaccessible acres will be determined based on county tax records and interpretation of GIS samples in Phase 2 of this SBEIS.

E_i .= _i .*A_i and,

_i .= F_i.*[M_i/N_i]

Where:

E_i .= Estimated economically inaccessible forest acres of ownership group i resulting from the forestry module rules

_i .= Estimation factor of inaccessible acres under the proposed forestry module rules

A_i .= Total sample acres of ownership group i

F_i .= Percent of economically inaccessible portion per acre of ownership group i resulting from water type rules

M_i .= Stream feet per acre of the private forest lands of ownership group i under the proposed forestry module rule

N_i .= Stream feet per acre of the private forest lands of ownership group i under the water type rules

i .= 10% largest industrial owner or nonindustrial private businesses respectively.

Exhibit A6-1 shows the data that we used and the estimated results. The total inaccessible acres of small businesses due to the proposed rules is 591 acres or about 2.99% of the total lands of impacted small businesses in sample. The total inaccessible acres due to the proposed rules for 10% largest industrial businesses is twenty-six acres or 0.72% of the total forest lands in the sample.

Exhibit A6-1: Impacts of the Proposed Rule: Economically inaccessible acres²⁹.

²⁹ Estimated based data from Water Type Rules SBEIS (Carruthers, 1997), US FIA data about ownerships of forest lands in eastern Washington, DNR GIS samples, and the assumption of linear relation with stream miles.

Appendix 7: Distributional Impacts Among Small Businesses

The objectives of land use for small forestry businesses are very different. While some of them use land for recreation primarily, some of them use land for commodities such as timber. Also some others use lands as an asset class for investment. Due to multiple functions of forestland, many businesses have multiple and dynamic objectives for their lands. The objectives are sometimes correlated to sizes of landholdings and affect management decisions. Whether or when a small business is impacted by the proposed rules is dependent upon their decisions on land use and the size of their landholdings.

While the average impact of the proposed rules on small businesses is that about 21% of their lands will be constrained for business activities such as timber harvest, the distribution of the regulatory impact is different among groups of small businesses of different sizes of landholdings and land use objectives.

1. Distribution of Impacts by Owner Size: The distribution of regulatory impacts among small businesses is different from largest industrial businesses. Although in general small businesses have a larger percentage of their lands under regulatory constraints, the wide-spread standard deviation indicates the impact is far from homogeneity which characterizes their large industrial counterparts. Exhibit A7-1 illustrates such distribution using the data from the SBEIS for the water type rules. A similar distribution chart will be provided in Phase 2 of this SBEIS for the proposed forestry module rules.

2. Estimated Regulatory Impacts by Size of Landholding of Small Businesses: The smaller the size of the landholding, the larger the percentage of acres in buffers as long as there is a stream crossing the parcel. We have used the following procedure to estimate the regulatory impacts on groups of businesses with different sizes of landholding.

H_i .= .*G_i and,

.= W/V

Where: H_i .= Estimated impact of the proposed rules on small businesses with landholding of size i, expressed as percentage

_i .= Adjusting factor

G_i .= Estimated impact of water type rules on small businesses with landholdings of size i, expressed as percentage

W .= Estimated impact of the proposed forestry module rules on small businesses, expressed as percentage

V .= Estimated impact of the water type rules on small businesses, expressed as percentage

The estimated results are listed in Exhibit 7 of the main text. In Phase 2, these numbers will be reestimated using empirical data after the individual businesses are identified on county tax records.

3. Estimate the Probabilities of Being Impacted

The procedure used to estimate the probabilities of being impacted by size of landholding is adopted from Lippke and Bare.³⁰ The regulatory impacts we estimated have been used instead of the assumption of 20% regulation constraints.

³⁰ See Lippke, B. And B. Bare. 1998. Supplementary Comments on the "Viability of the Non-industrial Private Forestry Sector in Washington State" Under Regulatory Uncertainty.

We assume that five acres are necessary for economic harvest potential. We can use the following procedure to calculate the probability that a business will be impacted if it decides to harvest mature forest in a given period. In other words, we can estimate the likelihood that the business will be impacted in that period.

P_i .= [1- (H_i)^M]

Where:

P_i .= Estimated probability of small businesses (with landholding of size i) who will be impacted by the proposed rules in a given period

H_i .= Estimated impact of the proposed rules on small businesses with landholding of size i (expressed as percentage)

M .= Mature timberland expressed as numbers of economic harvestable plots (each plot has 5 acres).

We have estimated the probability of being impacted for five groups of small businesses for the periods of ten years and fifty years. The estimated results are provided in Exhibit 8 in the main text.

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, e-mail forest.practicesboard@wadnr.gov.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. Some of the sections proposed are significant legislative rules.

Hearing Location: Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA, on May 19, 1999, at 3 p.m.

Assistance for Persons with Disabilities: Contact Forest Practices Board Secretary, (360) 902-1413, by May 1, 1999, TTY (360) 902-1125.

Submit Written Comments to: Judith Holter, Department of Natural Resources, Forest Practices Division, fax (360) 902-1784, by May 21, 1999.

Date of Intended Adoption: May 28, 1999.

October 6, 1998

Jennifer M. Belcher

Commissioner of Public Lands

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-08-035  Continuing review of forest practices ((regulations)) rules. .*(1) Annual evaluations. The department, after consulting with affected state agencies, Indian tribes, forest landowners, fish and wildlife, natural resources, and environmental interest groups, shall beginning July 1, 1988, report annually to the forest practices board an assessment of how ((regulations)) the rules and voluntary processes are working.

(2) Adaptive management. CMER will report results to the TFW Policy Group within six months of completion of a project. If CMER does not contain a consensus report, then the majority and minority thinking should be forwarded to TFW. TFW will report the project results to the board within six months of CMERs report. TFW will use CMERs work to make recommendations amending: the statutory scheme of forest practices management; the regulatory scheme of for forest practices management; voluntary, incentive-based, and training programs affecting forestry; resource objectives; and CMER, adaptive management procedures, or other mechanisms for implementing forest practices. TFW recommendations to the board will be accompanied by formal petitions for rule making (RCW 34.05.330), if appropriate. If TFW cannot reach agreement, then mediation may be used. If mediation is not successful within three months, then the forest practices board will hear the alternatives and recommendations and make a decision. In addition, ((The)) the department is directed to report to the board on opportunities to modify these ((regulations)) rules when baseline data, monitoring, evaluation or the use of interdisciplinary teams show that such adaptive management will better meet the purposes and policies of the Forest Practices Act.

(3) Resource management plans. The department is directed to develop a method for cooperative voluntary resource management planning among forest landowners, governmental agencies, affected Indian tribes, and environmental groups which would result in the development of plans which might be used as an alternative to the forest practice regulations in achieving the purposes and policies set forth in the act. This should be done through pilot projects, at least one of which should be located on the east side of the Cascade summit and one on the west side of the Cascade summit.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-08-035, filed 12/3/97, effective 1/3/98. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-08-035, filed 11/16/87, effective 1/1/88.]

NEW SECTION

WAC 222-10-020  .*SEPA policies for certain forest practices within 200 feet of a Type S water. The following policies shall apply to Class IV-Special forest practices, involving construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas within 200 feet of Type S waters.

.*(1) In order to determine whether forest practices are likely to have a probable significant adverse impact, and therefore require an environmental impact statement, the applicant must submit to the department additional information prepared by a qualified expert on: Whether the proposed activity is within the channel migration zone of the Type S water; whether the proposed activity has the potential for accelerating erosional and depositional processes of the Type S water; whether the proposal will have an impact on salmonid spawning, rearing, or migration habitat; and whether the proposal will adversely impact a threatened or endangered species. (See WAC 222-10-043.) In addition, the report must identify specific mitigation measures designed to reduce the impacts to avoid any probable significant adverse impacts identified above.

.*(2) The department will evaluate the proposal in consultation with the department of ecology, the department of fish and wildlife, local government, and affected Indian tribes. If the proposal is likely to cause significant adverse impacts to salmonid spawning, rearing, or migration habitat, accelerate erosional and depositional processes of the Type S water, or cause significant adverse impacts to a threatened or endangered species, then it is likely to have a probable significant adverse impact on the environment. If the department determines, in consultation with the department of fish and wildlife, that the proposal will appropriately mitigate the impacts, then the mitigated proposal is not likely to have a probable significant adverse impact on the environment.

.*(3) If a local permit is required, then the local government is lead agency and the department shall forward the additional information, the environmental checklist, and the forest practices application to the local government for completing SEPA. (See WAC 222-20-040(4).)

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NEW SECTION

WAC 222-10-030  Class IV-Special construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas or timber harvest on unstable landforms or slide prone areas SEPA policies. In addition to the SEPA policies established elsewhere in this chapter, the following policies shall apply to Class IV-Special forest practices involving construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas, or timber harvest, on unstable landforms or other slide-prone areas.

(1) In order to determine whether forest practices are likely to have a probable significant adverse impact, and therefore require an environmental impact statement, the applicant must submit additional information to the department, including a report by a qualified expert, regarding: whether the site contains or is affected by unstable landforms, such as but not limited to inner gorges, deep-seated landslides, bedrock hollows, convergent headwalls, or other weak geologic formations or structures; whether such landforms have the potential to undergo mass movement; if mass movement occurs, whether water, sediment, and/or debris could be delivered to public resources or threaten public safety; and, whether the likelihood of movement would be increased as a result of the proposed forest practice activity. In addition the report must identify specific mitigation measures that are proposed to reduce any probable significant adverse impacts identified above.

(2) The department shall evaluate the proposal, using appropriate expertise, to determine whether the proposed forest practices reasonably would be expected, directly or indirectly, to increase the likelihood of a slope to undergo mass movement; and to deliver debris, sediment and/or water to a public resource or threaten public safety. If such is the case, then the proposed forest practices are assumed to have a probable significant adverse impact on the environment.

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NEW SECTION

WAC 222-12-044  Cooperative opportunities. The forest practices board recognizes and encourages cooperative opportunities to work to build solutions associated with forest practices. The forest practices board can at any time use this method to assist in assessing and recommending solutions to issues. The board recognizes the Timber, Fish, and Wildlife cooperative as one ongoing cooperative group that represents disparate interests while working towards consensus recommendations, where possible, to forest practices issues. TFW membership is self-selecting and should be made of at least three policy members each from the following caucuses: Forest landowners (industrial and family-owned); environmental community; tribal governments; county governments with forest lands; state agencies (departments of fish and wildlife, ecology and natural resources); federal government (National Marine Fisheries Service, US Fish and Wildlife Service, Environmental Protection Agency and US Forest Service). TFW members will serve without compensation or per diem. TFW will assist the forest practices board in: Establishing resource objectives; selecting the administrator of CMER; determining CMERs program priories and specific projects; defining research objectives; making recommendations to the forest practices board based on results of CMER projects or other issues the board has requested assistance of TFW; assisting in dispute resolution where CMER cannot come to consensus; and serving as requested by the board in other roles.

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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 87-23-036, filed 11/16/87, effective 1/1/88)

WAC 222-12-045  .*Adaptive management. In order to further the purposes of chapter 76.09 RCW the board has adopted a policy of adaptive management designed to modify these ((regulations)) rules and their application based on cooperative research, monitoring, and evaluation. This policy will be implemented by establishing the Cooperative, Monitoring, Evaluation and Research committee. The committee will emphasize validation and effectiveness monitoring and research. The committee will use accepted scientific principles for performing their work, such as: Identifying testable hypotheses, utilizing established resource objectives, identifying the affected public resource and the cause and effect relationship with forest practices, data gathering analysis, and evaluation of resource and operational impacts. Each funded project will have an independent scientific peer review conducted. The committee will be made up of members of each TFW caucus that have expertise in the interaction of forest practices with public resources. CMER members will serve voluntarily without compensation or per diem. The department will employ an administrator to oversee the committee. The administrator will be selected in consultation with caucus representatives of the Timber, Fish, and Wildlife cooperative. The administrator will be responsible for managing the research and monitoring, including budget preparation and work plans with set time frames for products, and resolving disputes within the committee. In addition, the administrator will select peer reviewers in consultation with TFW. The administrator will report to the forest practices board annually the membership of the CMER. The administrator will present to the forest practices board biennially a budget proposal, projects list and time frames for work to be accomplished for approval. The proposal will have been developed in consultation with TFW. This will the basis for CMERs biennial request to the legislature. The administrator will be responsible for annual progress reports to the forest practices board on the funded projects. The department will conduct a performance audit of the expenditure of legislatively appropriated funds biennially. Such adaptive management shall include the measures set out in WAC 222-08-035.

[Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-12-045, filed 11/16/87, effective 1/1/88.]

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

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 fish and 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)

(14) Survey protocol for marbled murrelets. The Pacific seabird survey protocol in effect March 1, 1997, shall be used when surveying for marbled murrelets in a stand. Surveys conducted before the effective date of this rule are valid if they were conducted in substantial compliance with generally accepted survey protocols in effect at the beginning of the season in which they were conducted.

(15) The department shall, in consultation with the department of fish and wildlife, develop platform protocols for use by applicants in estimating the number of platforms, and by the department in reviewing and classifying forest practices under WAC 222-16-050. These protocols shall include:

(a) A sampling method to determine platforms per acre in the field;

(b) A method to predict the number of platforms per acre based on information measurable from typical forest inventories. The method shall be derived from regression models or other accepted statistical methodology, and incorporate the best available data; and

(c) Other methods determined to be reliable by the department, in consultation with the department of fish and wildlife.

.*(16) Requirements for application of pesticides, aerial application equipment and operating parameters, and favorable weather conditions for aerial application of pesticides.

.*(17) Delivery of sediment and debris, and lengths of channel disturbance zones.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-12-090, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-12-090, filed 7/21/97, effective 8/21/97. 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 98-07-047, filed 3/13/98, effective 5/1/98)

WAC 222-16-010  General definitions..* Unless otherwise required by context, as used in these regulations:

"Act" means the Forest Practices Act, chapter 76.09 RCW.

"Affected Indian tribe" means any federally recognized Indian tribe that requests in writing from the department information on forest practices applications and notification filed on specified areas.

"Appeals board" means the forest practices appeals board established in the act.

"Area of resource sensitivity" means areas identified in accordance with WAC 222-22-050 (2)(d) or 222-22-060(2).

"Bankfull level" (bankfull stage) means the elevation of the top of the active geomorphic floodplain of a stream. It is the area inundated by a flow having a return period of approximately 1.5 years in the annual flood series, which is considered the effective channel-forming discharge. Bankfull level is indicated by the top of the point bar; by a change in vegetation, from bare surfaces or water-tolerant species to water-intolerant shrubs and trees; by a break in slope; or by a change in the size distribution of surface sediments.

"Bankfull depth" means the elevation difference between the lowest point of a riffle and the bankfull level in a stream reach.

"Bankfull width" means the average distance between the lines defining the bankfull depth in a stream reach.

"Bedrock hollows" ("colluvium-filled bedrock hollows" or "hollows"; also referred to as zero-order basins, swales, or bedrock depressions) are commonly spoon-shaped areas of convergent topography (upward or contour concavity) within unchannelled valleys on hillslopes. Hollows are formed on slopes of varying steepness, and tend to be longitudinally linear on the slope. Their upper ends can extend to the ridge, or begin as much as several hundred feet below. Most hollows are approximately 75 to 200 feet wide at the top, and may narrow to 30 to 60 feet downhill. They terminate at distinct channels, either at the usual point of channel initiation or along a stream side. Unless they have recently experienced scouring by landslide or debris flow, bedrock hollows are partially or completely filled with colluvial soils that are typically deeper than those on the adjacent spurs and planar slopes. (Note: Hollows that are completely filled with colluvium may show no surface concavity.) Many hollows have no surface water, but others contain seeps and springs. Hollows should not be confused with other hillslope concavities such as small valleys, the bodies of large landslides, tree-throw holes, or low-gradient grassy swales. Bedrock hollows typically experience episodic evacuation of debris by shallow-rapid mass movement, followed by slow refilling with colluvium. Debris slides that begin within bedrock hollows commonly evolve into debris torrents, which have the potential to reach great distances downhill and downstream.

"Board" means the forest practices board established by the act.

"Bog" means wetlands which have the following characteristics: Hydric organic soils (peat and/or muck) typically 16 inches or more in depth (except over bedrock or hardpan); and vegetation such as sphagnum moss, labrador tea, bog laurel, bog rosemary, sundews, and sedges; bogs may have an overstory of spruce, western Hemlock, lodgepole pine, cedar, whitepine, crabapple, or aspen, and may be associated with open water. This includes nutrient-poor fens. See the Forest Practices Board Manual.

"Borrow pit" shall mean an excavation site outside the limits of construction to provide material necessary to that construction, such as fill material for the embankments.

"Channel disturbance zone (CDZ)" means the area that might be affected by landslides or debris torrents originating on hillslopes that are identified as actively or potentially unstable. The longitudinal extent of a CDZ is estimated as:

For existing or potential stream-adjacent landslides, the CMZ includes the stream reach(es) bordering the slide body;

For existing or potential upslope landslides, from which delivery of sediment or debris is likely, the stream reach(es) directly downhill from the slide area;

For landslides that could reasonably be transformed into debris torrents (debris flows or dam-break floods), the downstream extent of the CDZ shall be estimated based on topographic, hydraulic, and vegetational characteristics of the channel, based on accepted methods as described in the Forest Practices Board Manual.

In all cases, CDZs shall include the entire width of the channel migration zone, unless local information and analysis indicates that not all of the CMZ could reasonably be affected.

"Channel migration zone (CMZ)" means the area that a stream has occupied, or could be expected to occupy, within the time it would take to grow trees of sufficient size to function geomorphically within the channel. Migration may be caused by meandering, braiding, or avulsion. In a given stream reach, the CMZ should be delineated as the widest zone including the following:

Areas of recently-occupied channels, as indicated by channel-bed topography, coarser surface sediments with thin soils, and/or younger vegetation;

The 100-year floodplain, as shown on flood insurance rate maps, or as estimated from hydraulic modeling;

The 100-year floodplain, estimated as the area that would be inundated by flows twice the bankfull depth;

An area, centered on the current channel, that is twice the bankfull width.

"Chemicals" means substances applied to forest lands or timber including pesticides, fertilizers, and other forest chemicals.

"Clearcut" means a harvest method in which the entire stand of trees is removed in one timber harvesting operation. Except as provided in WAC 222-30-110, an area remains clearcut until:

It meets the minimum stocking requirements under WAC 222-34-010(2) or 222-34-020(2); and

The largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.

"Colluvium-filled bedrock hollows": See bedrock hollows.

"Columbia River Gorge National Scenic Area or CRGNSA" means the area established pursuant to the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544b(a).

"CRGNSA special management area" means the areas designated in the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544b(b) or revised pursuant to 16 U.S.C. § 544b(c). For purposes of this rule, the special management area shall not include any parcels excluded by 16 U.S.C. § 544f(o).

"CRGNSA special management area guidelines" means the guidelines and land use designations for forest practices developed pursuant to 16 U.S.C. § 544f contained in the CRGNSA management plan developed pursuant to 15 U.S.C. § 544d.

"Commercial tree species" means any species which is capable of producing a merchantable stand of timber on the particular site, or which is being grown as part of a Christmas tree or ornamental tree-growing operation.

"Completion of harvest" means the latest of:

Completion of removal of timber from the portions of forest lands harvested in the smallest logical unit that will not be disturbed by continued logging or an approved slash disposal plan for adjacent areas; or

Scheduled completion of any slash disposal operations where the department and the applicant agree within 6 months of completion of yarding that slash disposal is necessary or desirable to facilitate reforestation and agree to a time schedule for such slash disposal; or

Scheduled completion of any site preparation or rehabilitation of adjoining lands approved at the time of approval of the application or receipt of a notification: Provided, That delay of reforestation under this paragraph is permitted only to the extent reforestation would prevent or unreasonably hinder such site preparation or rehabilitation of adjoining lands.

"Constructed wetlands" means those wetlands voluntarily developed by the landowner. Constructed wetlands do not include wetlands created, restored, or enhanced as part of a mitigation procedure or wetlands inadvertently created as a result of current or past practices including, but not limited to: Road construction, landing construction, railroad construction, or surface mining.

"Contamination" means the introducing into the atmosphere, soil, or water, sufficient quantities of substances as may be injurious to public health, safety or welfare, or to domestic, commercial, industrial, agriculture or recreational uses, or to livestock, wildlife, fish or other aquatic life.

"Convergent headwalls" ("headwalls") are teardrop-shaped landforms, broad at the ridgetop and terminating where headwater channels have converged into a single channel. They are broadly concave both longitudinally and across the slope, but may contain sharp ridges that separate the headwater channels. Convergent headwalls generally range in size from about 30 to 300 acres; slope gradients are typically steeper than 35, and may locally exceed 45. Soils are thin because slides are frequent in these landforms. It is the arrangement of bedrock hollows and first-order channels on the landscape that causes a convergent headwall to be a unique mass-wasting feature. The highly convergent shape of the slopes, coupled with thin soils, allows rapid saturation during rainfall and/or snowmelt. The mass-wasting response of these areas to storms, natural disturbances such as fire, and to forest practices is much greater than is observed on other steep hillslopes in the same geologic settings. Convergent headwalls are also prone to surface erosion. Landslides that evolve into debris flows in convergent headwalls typically deliver debris to larger channels downstream. Channel gradients are extremely steep within headwalls, and generally remain so for long distances downstream. Channels that exit the bottoms of headwalls have been formed by repeated debris flows, and have forms and gradients that are efficient at conducting them. Convergent headwalls commonly have debris fans at the slope bases.

"Conversion option harvest plan" means a voluntary plan developed by the landowner and approved by the local government entity indicating the limits of harvest areas, road locations, and open space.

"Conversion to a use other than commercial timber operation" shall mean a bona fide conversion to an active use which is incompatible with timber growing.

"Cooperative habitat enhancement agreement (CHEA)" see WAC 222-16-105.

"Critical habitat (federal)" means the habitat of any threatened or endangered species designated as critical habitat by the United States Secretary of the Interior or the United States Secretary of Commerce under Sections 3 (5)(A) and 4 (a)(3) of the Federal Endangered Species Act.

"Critical nesting season" means for marbled murrelets - April 1 to August 31.

"Critical wildlife habitat (state)" means those habitats designated by the board in accordance with WAC 222-16-080.

"Cultural resources" means archaeological and historic sites and artifacts and traditional religious, ceremonial and social uses and activities of affected Indian tribes.

"Cumulative effects" means the changes to the environment caused by the interaction of natural ecosystem processes with the effects of two or more forest practices.

"Daily peak activity" means for marbled murrelets - one hour before official sunrise to two hours after official sunrise and one hour before official sunset to one hour after official sunset.

"Debris" means woody vegetative residue less than 3 cubic feet in size resulting from forest practice activities which would reasonably be expected to cause significant damage to a public resource.

"Debris torrents" are mixtures of water, sediment, and debris that move in and along mountain channels. They include debris flows, and hyperconcentrated floods that may be caused by the collapse of natural or artificial dams (such as landslide dams or debris jams).

"Deep-seated landslides" are landslides in which the zone of movement is below the maximum rooting depth of forest trees, to depths of tens to hundreds of feet. Deep-seated landslides can vary greatly in size (up to thousands of acres) and activity level, and can occur almost anywhere on the hillslope. Deep-seated landslides are usually formed in incompetent materials such as glacial deposits, volcaniclastic rocks, and fault gauge. Commonly, development of a deep-seated landslide begins after a slope has been oversteepened by glacial or fluvial undercutting; however, the initiation of such slides has also been associated with changes in land use, increases in ground-water levels, and the degradation of material strength through natural processes. Movement can be translational, rotational, or complex; range from slow to rapid; and displacements can be small to large.

"Deep-seated landslides in bedrock" commonly occur in masses that are relatively weak. These can include bodies in which the rocks themselves are incompetent, such as certain types of clay-rich sediments and volcanics (e.g., some shales and tuffs), or low-grade metamorphic rocks (e.g., phyllite); or in highly weathered materials, such as deeply weathered rock and saprolite. In other cases, the geologic structure weakens the rock strength: Bedding planes, joints, and faults commonly act as planes of weakness that can become slide surfaces.

"Deep-seated landslides in glacial deposits" are common in thicker glacial deposits, most usually where relatively permeable and impermeable materials are juxtaposed. Impermeable deposits can perch ground water, causing elevated pore-water pressures in the overlying deposits, which can then slide out and downward.

Many deep-seated landslides occur in the lower portions of hillslopes and extend directly into stream channels. In such situations, streams can undercut the landslide toes, promoting further movement; such oversteepened toes can also be sensitive to changes caused by harvest and road construction. On the other hand, deep-seated landslides confined to the upper slopes may not have the ability to deposit material directly into stream channels. The ability of scarps and marginal streams to deliver sediment to waters or structures varies with local topography. Steep marginal streams can be subject to debris-flow initiation.

"Demographic support" means providing sufficient suitable spotted owl habitat within the SOSEA to maintain the viability of northern spotted owl sites identified as necessary to meet the SOSEA goals.

"Department" means the department of natural resources.

"Dispersal habitat" see WAC 222-16-085(2).

"Dispersal support" means providing sufficient dispersal habitat for the interchange of northern spotted owls within or across the SOSEA, as necessary to meet SOSEA goals. Dispersal support is provided by a landscape consisting of stands of dispersal habitat interspersed with areas of higher quality habitat, such as suitable spotted owl habitat found within RMZs, WMZs or other required and voluntary leave areas.

"Drainage management" means road drainage techniques and strategies that prevent sediments from delivering to typed waters.

"Drainage management plan" means a plan that prevents road sediment delivery greater than one half the background level of a defined drainage area.

"Eastern Washington" means the lands of the state lying east of an administrative line which approximates the change from the Western Washington timber types to the Eastern Washington timber types described as follows:

Beginning at the International Border and Okanogan National Forest boundary at the N1/4 corner Section 6, T. 40N, R. 24E., W.M., south and west along the Pasayten Wilderness boundary to the west line of Section 30, T. 37N, R. 19E.,

Thence south on range line between R. 18E. and R. 19E., to the Lake Chelan-Sawtooth Wilderness at Section 31, T. 35N, R. 19E.,

Thence south and east along the eastern wilderness boundary of Lake Chelan-Sawtooth Wilderness to the west line of Section 18, T. 31N, R. 19E. on the north shore of Lake Chelan,

Thence south on the range line between R. 18E. and R. 19E. to the SE corner of T. 28N, R. 18E.,

Thence west on the township line between T. 27N, and T. 28N to the NW corner of T. 27N, R. 17E.,

Thence south on range line between R. 16E. and R. 17E. to the Alpine Lakes Wilderness at Section 31, T. 26N, R. 17E.,

Thence south along the eastern wilderness boundary to the west line of Section 6, T. 22N, R. 17E.,

Thence south on range line between R. 16E. and R. 17E. to the SE corner of T. 22N, R. 16E.,

Thence west along township line between T. 21N, and T. 22N to the NW corner of T. 21N, R. 15E.,

Thence south along range line between R. 14E. and R. 15E. to SW corner of T. 20N, R. 15E.,

Thence east along township line between T. 19N, and T. 20N to the SW corner of T. 20N, R. 16E.,

Thence south along range line between R. 15E. and R. 16E. to the SW corner of T. 18N, R. 16E.,

Thence west along township line between T. 17N, and T. 18N to the SE corner of T. 18N, R. 14E.,

Thence south along range line between T. 14E. and R. 15E. to the SW corner of T. 14N, R. 15E.,

Thence south and west along Wenatchee National Forest Boundary to the NW corner of T. 12N, R. 14E.,

Thence south along range line between R. 13E. and R. 14E. to SE corner of T. 10N, R. 13E.,

Thence west along township line between T. 9N, and T. 10N to the NW corner of T. 9N, R. 12E.,

Thence south along range line between R. 11E. and R. 12E. to SE corner of T. 8N, R. 11E.,

Thence west along township line between T. 7N, and T. 8N to the Gifford Pinchot National Forest Boundary,

Thence south along Forest Boundary to SE corner of Section 33, T. 7N, R. 11E.,

Thence west along township line between T. 6N, and T. 7N to SE corner of T. 7N, R. 9E.,

Thence south along Skamania-Klickitat County line to Oregon-Washington state line.

"End hauling" means the removal and transportation of excavated material, pit or quarry overburden, or landing or road cut material from the excavation site to a deposit site not adjacent to the point of removal.

"Erodible soils" means those soils exposed or displaced by a forest practice operation, that would be readily moved by water.

"Even-aged harvest methods" means the following harvest methods:

Clearcuts;

Seed tree harvests in which twenty or fewer trees per acre remain after harvest;

Shelterwood regeneration harvests in which twenty or fewer trees per acre remain after harvest;

Group or strip shelterwood harvests creating openings wider than two tree heights, based on dominant trees;

Shelterwood removal harvests which leave fewer than one hundred fifty trees per acre which are at least five years old or four feet in average height;

Partial cutting in which fewer than fifty trees per acre remain after harvest;

Overstory removal when more than five thousand board feet per acre is removed and fewer than fifty trees per acre at least ten feet in height remain after harvest; and

Other harvesting methods designed to manage for multiple age classes in which six or fewer trees per acre remain after harvest.

Except as provided above for shelterwood removal harvests and overstory removal, trees counted as remaining after harvest shall be at least ten inches in diameter at breast height and have at least the top one-third of the stem supporting green, live crowns. Except as provided in WAC 222-30-110, an area remains harvested by even-aged methods until it meets the minimum stocking requirements under WAC 222-30-010(2) or 222-34-020(2) and the largest trees qualifying for the minimum stocking levels have survived on the area for five growing seasons or, if not, they have reached an average height of four feet.

"Fen" means wetlands which have the following characteristics: Peat soils 16 inches or more in depth (except over bedrock); and vegetation such as certain sedges, hardstem bulrush and cattails; fens may have an overstory of spruce and may be associated with open water.

"Fertilizers" means any substance or any combination or mixture of substances used principally as a source of plant food or soil amendment.

"Fill" means the placement of earth material or aggregate for road or landing construction or other similar activities. Fill does not include the growing or harvesting of timber including, but not limited to, slash burning, site preparation, reforestation, precommercial thinning, intermediate or final harvesting, salvage of trees, brush control, or fertilization.

"Flood level - 50 year." For purposes of field interpretation of these regulations, the 50-year flood level shall be considered to refer to a vertical elevation measured from the ordinary high-water mark which is 1.25 times the vertical distance between the average stream bed and the ordinary high-water mark, and in horizontal extent shall not exceed 2 times the channel width measured on either side from the ordinary high-water mark, unless a different area is specified by the department based on identifiable topographic or vegetative features or based on an engineering computation of flood magnitude that has a 2 percent chance of occurring in any given year. The 50-year flood level shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or under license from the federal government, the state, or a political subdivision of the state.

"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 owner" shall mean 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: Provided, That 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 land owner" 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.

"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:

Road and trail construction;

Harvesting, final and intermediate;

Precommercial thinning;

Reforestation;

Fertilization;

Prevention and suppression of diseases and insects;

Salvage of trees; and

Brush control.

"Forest practice" shall not include: Forest species seed orchard operations and intensive forest nursery operations; or preparatory work such as tree marking, surveying and road flagging; or removal or harvest 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.

"Forest trees" excludes trees cultivated by agricultural methods in growing cycles shorter than ten years: Provided, That Christmas trees are forest trees and: Provided further, That this exclusion applies only to trees 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.

"Green recruitment trees" means those trees left after harvest for the purpose of becoming future wildlife reserve trees under WAC 222-30-020(11).

"Haul, nonrestricted" means hauling is permitted based on a drainage management plan.

"Haul, restricted" means timber and rock hauling is permitted only during those periods sediment is not delivered to typed waters.

"Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any tree, bush, weed or algae and other aquatic weeds.

"Historic site" includes:

Sites, areas and structures or other evidence of human activities illustrative of the origins, evolution and development of the nation, state or locality; or

Places associated with a personality important in history; or

Places where significant historical events are known to have occurred even though no physical evidence of the event remains.

"Hollows": See colluvium-filled bedrock hollows.

"Hyporheic areas" are zones adjacent to and below active channels where interstitial water is exchanged with channel water; water movement is mainly in the downstream direction.

"Identified watershed processes" means the following components of natural ecological processes that may in some instances be altered by forest practices in a watershed:

Mass wasting;

Surface and road erosion;

Seasonal flows including hydrologic peak and low flows and annual yields (volume and timing);

Large organic debris;

Shading; and

Stream bank and bed stability.

"Inner gorges" are canyon walls created by a combination of the downcutting/undercutting action of a stream and mass movement on the slope walls. They are oversteepened, that is, steeper than can be accounted for by slope processes alone, and subject to greater rates of mass wasting as a result. Inner gorges show evidence of recent movement, such as obvious landslides, vertical tracks of disturbance vegetation, or areas that are concave in contour and/or profile. In competent bedrock, slope gradients of 35 or steeper can be maintained, but soil mantles are increasingly sensitive to root-strength loss at these angles; slope gradients as gentle as 28 can be unstable in gorges cut into incompetent bedrock. The top of the inner gorge is typically a distinct break in slope, but in some places the upper boundary is a subtle zone where the slope becomes markedly steeper or convex downhill. Inner gorge walls can be continuous for great lengths, as along a highly confined stream that is actively downcutting; or they can be discontinuous, as along a flood-plain channel that is undercutting the adjacent hillslopes in isolated places where the stream has meandered to the valley edge. Inner gorges experiencing mass wasting are likely to deliver sediment to waters or structures downhill. Exceptions can occur where benches of sufficient size to stop moving material exist along the gorge walls, but these are uncommon. Inner gorges are distinguished from ordinary steep valley sides: Ordinary valleys can be V-shaped with distinct slope breaks at the top, but they commonly do not show evidence of recent movement.

In practice, a minimum vertical height of 10 feet should be applied to discriminate inner gorges from slightly incised streams. The upper boundary of an inner gorge is assumed to be a line along the first break in slope of at least 10, or the line above which slope gradients are typically gentler than 30.

"Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect, other arthropods or mollusk pests.

"Interdisciplinary team" (ID Team) means a group of varying size comprised of individuals having specialized expertise, assembled by the department to respond to technical questions associated with a proposed forest practice activity.

"Islands" means any island surrounded by salt water in Kitsap, Mason, Jefferson, Pierce, King, Snohomish, Skagit, Whatcom, Island, or San Juan counties.

"Limits of construction" means the area occupied by the completed roadway or landing, including the cut bank, fill slope, and the area cleared for the purpose of constructing the roadway or landing.

"Load bearing portion" means that part of the road, landing, etc., which is supportive soil, earth, rock or other material directly below the working surface and only the associated earth structure necessary for support.

"Local government entity" means the governments of counties and the governments of cities and towns as defined in chapter 35.01 RCW.

"Low impact harvest" means use of any logging equipment, methods, or systems that minimize compaction or disturbance of soils and vegetation during the yarding process. The department shall determine such equipment, methods or systems in consultation with the department of ecology.

"Marbled murrelet detection area" means an area of land associated with a visual or audible detection of a marbled murrelet, made by a qualified surveyor which is documented and recorded in the department of fish and wildlife data base. The marbled murrelet detection area shall be comprised of the section of land in which the marbled murrelet detection was made and the eight sections of land immediately adjacent to that section.

"Marbled murrelet nesting platform" means any horizontal tree structure such as a limb, an area where a limb branches, a surface created by multiple leaders, a deformity, or a debris/moss platform or stick nest equal to or greater than 7 inches in diameter including associated moss if present, that is 50 feet or more above the ground in trees 32 inches dbh and greater (generally over 90 years of age) and is capable of supporting nesting by marbled murrelets.

"Median home range circle" means a circle, with a specified radius, centered on a spotted owl site center. The radius for the median home range circle in the Hoh-Clearwater/Coastal Link SOSEA is 2.7 miles; for all other SOSEAs the radius is 1.8 miles.

"Merchantable stand of timber" means a stand of trees that will yield logs and/or fiber:

Suitable in size and quality for the production of lumber, plywood, pulp or other forest products;

Of sufficient value at least to cover all the costs of harvest and transportation to available markets.

"Northern spotted owl site center" means the location of status 1, 2 or 3 northern spotted owls based on the following definitions:

Status 1: Pair or reproductive - a male and female heard and/or observed in close proximity to each other on the same visit, a female detected on a nest, or one or both adults observed with young.

Status 2: Two birds, pair status unknown - the presence or response of two birds of opposite sex where pair status cannot be determined and where at least one member meets the resident territorial single requirements.

Status 3: Resident territorial single - the presence or response of a single owl within the same general area on three or more occasions within a breeding season with no response by an owl of the opposite sex after a complete survey; or three or more responses over several years (i.e., two responses in year one and one response in year two, for the same general area).

In determining the existence, location, and status of northern spotted owl site centers, the department shall consult with the department of fish and wildlife and use only those sites documented in substantial compliance with guidelines or protocols and quality control methods established by and available from the department of fish and wildlife.

"Notice to comply" means a notice issued by the department pursuant to RCW 76.09.090 of the act and may require initiation and/or completion of action necessary to prevent, correct and/or compensate for material damage to public resources which resulted from forest practices.

"Occupied marbled murrelet site" means:

(1) A contiguous area of suitable marbled murrelet habitat where at least one of the following marbled murrelet behaviors or conditions occur:

(a) A nest is located; or

(b) Downy chicks or eggs or egg shells are found; or

(c) Marbled murrelets are detected flying below, through, into or out of the forest canopy; or

(d) Birds calling from a stationary location within the area; or

(e) Birds circling above a timber stand within one tree height of the top of the canopy; or

(2) A contiguous forested area, which does not meet the definition of suitable marbled murrelet habitat, in which any of the behaviors or conditions listed above has been documented by the department of fish and wildlife and which is distinguishable from the adjacent forest based on vegetative characteristics important to nesting marbled murrelets.

(3) For sites defined in (1) above, the outer perimeter of the occupied site shall be presumed to be the closer, measured from the point where the observed behaviors or conditions listed in (1) above occurred, of the following:

(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or

(b) The beginning of any gap greater than 300 feet wide lacking one or more of the vegetative characteristics listed under "suitable marbled murrelet habitat"; or

(c) The beginning of any narrow area of "suitable marbled murrelet habitat" less than 300 feet in width and more than 300 feet in length.

(4) For sites defined under (2) above, the outer perimeter of the occupied site shall be presumed to be the closer, measured from the point where the observed behaviors or conditions listed in (1) above occurred, of the following:

(a) 1.5 miles from the point where the observed behaviors or conditions listed in (1) above occurred; or

(b) The beginning of any gap greater than 300 feet wide lacking one or more of the distinguishing vegetative characteristics important to murrelets; or

(c) The beginning of any narrow area of suitable marbled murrelet habitat, comparable to the area where the observed behaviors or conditions listed in (1) above occurred, less than 300 feet in width and more than 300 feet in length.

(5) In determining the existence, location and status of occupied marbled murrelet sites, the department shall consult with the department of fish and wildlife and use only those sites documented in substantial compliance with guidelines or protocols and quality control methods established by and available from the department of fish and wildlife.

"Old forest habitat" see WAC 222-16-085 (1)(a).

"Operator" shall mean any person engaging in forest practices except an employee with wages as his/her sole compensation.

"Ordinary high-water mark" means the mark on the shores of all waters, which will be found by examining the beds and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation: Provided, That in any area where the ordinary high-water mark cannot be found, the ordinary high-water mark adjoining saltwater shall be the line of mean high tide and the ordinary high-water mark adjoining freshwater shall be the line of mean high-water.

"Other forest chemicals" means fire retardants when used to control burning (other than water), nontoxic repellents, oil, dust-control agents (other than water), salt, and other chemicals used in forest management, except pesticides and fertilizers, that may present hazards to the environment.

"Park" means any park included on the parks register maintained by the department pursuant to WAC 222-20-100(2). Developed park recreation area means any park area developed for high density outdoor recreation use.

"Partial cutting" means the removal of a portion of the merchantable volume in a stand of timber so as to leave an uneven-aged stand of well-distributed residual, healthy trees that will reasonably utilize the productivity of the soil. Partial cutting does not include seedtree or shelterwood or other types of regeneration cutting.

"Pesticide" means any insecticide, herbicide, fungicide, or rodenticide but does not include nontoxic repellents or other forest chemicals.

"Plantable area" is an area capable of supporting a commercial stand of timber excluding lands devoted to permanent roads, utility rights-of-way, that portion of riparian management zones where scarification is not permitted, and any other area devoted to a use incompatible with commercial timber growing.

"Power equipment" means all machinery operated with fuel burning or electrical motors, including heavy machinery, chain saws, portable generators, pumps, and powered backpack devices.

"Public resources" means water, fish, and wildlife and in addition shall mean capital improvements of the state or its political subdivisions.

"Qualified expert" means a person qualified for level 2 certification in the watershed analysis process, plus at least 5 years of experience in the evaluation of relevant problems in forested lands.

"Qualified surveyor" means an individual who has successfully completed the marbled murrelet field training course offered by the department of fish and wildlife or its equivalent.

"Rehabilitation" means the act of renewing, or making usable and reforesting forest land which was poorly stocked or previously nonstocked with commercial species.

"Relief culvert" means a structure to relieve surface runoff from roadside ditches to prevent excessive buildup in water volume and velocity.

"Resource characteristics" means the following specific measurable characteristics of fish, water, and capital improvements of the state or its political subdivisions:

For fish and water:

Physical fish habitat, including temperature and turbidity;

Turbidity in hatchery water supplies; and

Turbidity and volume for areas of water supply.

For capital improvements of the state or its political subdivisions:

Physical or structural integrity.

If the methodology is developed and added to the manual to analyze the cumulative effects of forest practices on other characteristics of fish, water, and capital improvements of the state or its subdivisions, the board shall amend this list to include these characteristics.

"Riparian management zone" means a specified area alongside ((Type 1, 2 and 3 Waters)) any typed waters where specific measures are taken to protect water quality and fish and wildlife habitat.

"Road sediment delivery" means sediment is entering a typed water from the road prism.

"Rodenticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate rodents or any other vertebrate animal which the director of the state department of agriculture may declare by regulation to be a pest.

"Salvage" means the removal of snags, down logs, windthrow, or dead and dying material.

"Scarification" means loosening the topsoil and/or disrupting the forest floor in preparation for regeneration.

"Seeps" are areas where water slowly percolates to the ground surface, commonly in a line controlled by fractures or bedding in the underlying rock, or where the local water table intercepts the surface. Seepage flow is insufficient to cause formation of a distinct channel, so the water moves downhill by overland flow; seeps are not directly connected to the channel network, but the flow may nevertheless be important for some ecosystem functions.

"Seeps, headwall" are those located on valley-head slopes, ridgeward of the upper end of the defined channel.

"Seeps, perennial" are those that flow through the dry season.

"Shorelines of the state" shall have the same meaning as in RCW 90.58.030 (Shoreline Management Act).

"Side casting" means the act of moving excavated material to the side and depositing such material within the limits of construction or dumping over the side and outside the limits of construction.

"Site preparation" means those activities associated with the removal of slash in preparing a site for planting and shall include scarification and/or slash burning.

"Skid trail" means a route used by tracked or wheeled skidders to move logs to a landing or road.

"Slash" means pieces of woody material containing more than 3 cubic feet resulting from forest practice activities.

"SOSEA goals" means the goals specified for a spotted owl special emphasis area as identified on the SOSEA maps (see WAC 222-16-086). SOSEA goals provide for demographic and/or dispersal support as necessary to complement the northern spotted owl protection strategies on federal land within or adjacent to the SOSEA.

"Spoil" means excess material removed as overburden or generated during road or landing construction which is not used within limits of construction.

"Spotted owl dispersal habitat" see WAC 222-16-085(2).

"Spotted owl special emphasis areas (SOSEA)" means the geographic areas as mapped in WAC 222-16-086. Detailed maps of the SOSEAs indicating the boundaries and goals are available from the department at its regional offices.

"Springs" are areas where water percolates to the ground surface, commonly in a point or limited area, controlled by fractures or bedding in the underlying rock, or where the local water table intercepts the surface. Where spring flow is sufficient to cause surface erosion, it may be the channel initiation point; springs can also occur within channels.

"Springs, perennial" are those that flow through the dry season. The upstream point of perennial flow in a channel is a perennial spring.

"Stop work order" means the "stop work order" defined in RCW 76.09.080 of the act and may be issued by the department to stop violations of the forest practices chapter or to prevent damage and/or to correct and/or compensate for damages to public resources resulting from forest practices.

"Streams" are channelized bodies of flowing water.

"Streams, perennial" are those that flow throughout the dry season. For a given stream, the entire length of channel downstream of a perennial seep or spring is considered perennial, whether or not there is water above the ground surface all year.

"Streams, seasonal" are those that do not flow throughout the year; channel reaches upstream of perennial springs.

"Sub-mature habitat" see WAC 222-16-085 (1)(b).

"Suitable marbled murrelet habitat" means a contiguous forested area containing trees capable of providing nesting opportunities:

(1) With all of the following indicators unless the department, in consultation with the department of fish and wildlife, has determined that the habitat is not likely to be occupied by marbled murrelets:

(a) Within 50 miles of marine waters;

(b) At least 40% of the dominant and codominant trees are Douglas-fir, western hemlock, western red cedar or sitka spruce;

(c) Two or more nesting platforms per acre;

(d) At least 7 acres in size, including the contiguous forested area within 300 feet of nesting platforms, with similar forest stand characteristics (age, species composition, forest structure) to the forested area in which the nesting platforms occur.

"Suitable spotted owl habitat" see WAC 222-16-085(1).

"Temporary road" means a roadway which has been opened for the purpose of the forest practice operation in question, and thereafter will be an abandoned road.

"Threatened or endangered species" means all species of wildlife listed as "threatened" or "endangered" by the United States Secretary of the Interior or the United States Secretary of Commerce, and all species of wildlife designated as "threatened" or "endangered" by the Washington fish and wildlife commission.

"Timber" shall mean forest trees, standing or down, of a commercial species, including Christmas trees.

"Water bar" means a diversion ditch and/or hump in a trail or road for the purpose of carrying surface water runoff into the vegetation duff, ditch, or other dispersion area so that it does not gain the volume and velocity which causes soil movement and erosion.

"Watershed administrative unit (WAU)" means an area shown on the map specified in WAC 222-22-020(1).

"Watershed analysis" means, for a given WAU, the assessment completed under WAC 222-22-050 or 222-22-060 together with the prescriptions selected under WAC 222-22-070 and shall include assessments completed under WAC 222-22-050 where there are no areas of resource sensitivity.

"Weed" is any plant which tends to overgrow or choke out more desirable vegetation.

"Western Washington" means the lands of the state lying west of the administrative line described in the definition of Eastern Washington.

"Wetland" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, such as swamps, bogs, fens, and similar areas. This includes wetlands created, restored, or enhanced as part of a mitigation procedure. This does not include constructed wetlands or the following surface waters of the state intentionally constructed from wetland sites: Irrigation and drainage ditches, grass lined swales, canals, agricultural detention facilities, farm ponds, and landscape amenities.

"Wetland functions" include the protection of water quality and quantity, flood control, bank stabilization, contributions to ground water and streamflows, and providing fish and wildlife habitat, and the production of timber. These functions may vary from wetland to wetland.

"Wetland management zone" means a specified area adjacent to Type A and B Wetlands where specific measures are taken to protect the wetland functions.

"Wildlife" means all species of the animal kingdom whose members exist in Washington in a wild state. The term "wildlife" includes, but is not limited to, any mammal, bird, reptile, amphibian, fish, or invertebrate, at any stage of development. The term "wildlife" does not include feral domestic mammals or the family Muridae of the order Rodentia (old world rats and mice).

"Wildlife reserve trees" means those defective, dead, damaged, or dying trees which provide or have the potential to provide habitat for those wildlife species dependent on standing trees. Wildlife reserve trees are categorized as follows:

Type 1 wildlife reserve trees are defective or deformed live trees that have observably sound tops, limbs, trunks, and roots. They may have part of the top broken out or have evidence of other severe defects that include: "Cat face," animal chewing, old logging wounds, weather injury, insect attack, or lightning strike. Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 1 wildlife reserve trees. These trees must be stable and pose the least hazard for workers.

Type 2 wildlife reserve trees are dead Type 1 trees with sound tops, limbs, trunks, and roots.

Type 3 wildlife reserve trees are live or dead trees with unstable tops or upper portions. Unless approved by the landowner, only green trees with visible cavities, nests, or obvious severe defects capable of supporting cavity dependent species shall be considered as Type 3 wildlife reserve trees. Although the roots and main portion of the trunk are sound, these reserve trees pose high hazard because of the defect in live or dead wood higher up in the tree.

Type 4 wildlife reserve trees are live or dead trees with unstable trunks or roots, with or without bark. This includes "soft snags" as well as live trees with unstable roots caused by root rot or fire. These trees are unstable and pose a high hazard to workers.

"Winds, favorable" means those winds where the wind direction effectively moves the spray cloud away from water, RMZ, or WMZ, based on visual observation of spray drift.

"Winds, unfavorable" means any winds which are not clearly favorable (see favorable winds) including calm conditions, inversions, or conditions of highly variable wind direction.

"Windthrow" means a natural process by which trees are uprooted or sustain severe trunk damage by the wind.

"Young forest marginal habitat" see WAC 222-16-085 (1)(b).

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-16-010, filed 3/13/98, effective 5/1/98; 97-24-091, § 222-16-010, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-16-010, filed 7/21/97, effective 8/21/97. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-16-010, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 94-17-033, § 222-16-010, filed 8/10/94, effective 8/13/94; 93-12-001, § 222-16-010, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-16-010, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 92-03-028, § 222-16-010, filed 1/8/92, effective 2/8/92; 91-23-052, § 222-16-010, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-16-010, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), § 222-16-010, 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), § 222-16-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-16-010, filed 6/16/76.]

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-16-030  Water typing system. .*The department in cooperation with the departments of fish and 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)) S, F, and N 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 fish and 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)) S 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)) F water" ((shall)) means segments of natural waters which are not classified as Type ((1 Water)) S water and ((have a high fish, wildlife, or human use)) contain fish habitat or are used by wildlife or humans. 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)) 10 residential or camping units or by a public accommodation facility licensed to serve more than ((100)) 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 ((2 Water)) F 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 within a federal, state, local, or private campground having more than ((30)) 10 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) Have the potential to be used by fish. The department will make maps available that represent fish habitat. These maps will be prepared using a multiparameter model(s) that uses geomorphic data such as stream gradient, basin size, elevation and precipitation to estimate where fish habitat is likely to be.

(d) Lakes, ponds, or impoundments having a surface area of 0.5 acre or greater at seasonal low water.

((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; or

(d) 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 fish for spawning, rearing or migration. Waters having the following characteristics are presumed to have significant anadromous fish use:

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

(ii) 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) Ponds or impoundments having a surface area greater than 0.5 acre at seasonal low water; or

(d) 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))) (3) "Type ((4 Water)) N water" means ((classification shall be applied to)) segments of natural waters which are not classified as Type ((1, 2 or 3, and for the)) S or F. Their purpose ((of protecting)) is to protect water quality and nonfish biota including stream associated amphibians and freshwater shellfish. Waters diverted for established domestic use by 10 or less residents ((downstream)) are classified as Type ((4 Water)) N 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.)) initiation point. These waters may include seasonal streams with defined channels. Their significance includes providing cool water downstream, sediment storage, and habitat for stream associated amphibians

((.*(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))) (4) 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")) "Fish habitat" means habitat of any ((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.)) species including, but not limited to food fish, shellfish, game fish, and other nonclassified fish species and all stages of development.

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

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-16-030, filed 12/3/97, effective 1/3/98. Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-16-030, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-16-030, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-16-030, filed 11/16/87, effective 1/1/88; Order 263, § 222-16-030, filed 6/16/76.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 98-07-047, filed 3/13/98, effective 5/1/98)

WAC 222-16-050  Classes of forest practices. There are 4 classes of forest practices created by the act. All forest practices (including those in Classes I and II) must be conducted in accordance with the forest practices regulations.

(1) "Class IV - special." Application to conduct forest practices involving the following circumstances requires an environmental checklist in compliance with the State Environmental Policy Act (SEPA), and SEPA guidelines, as they have been determined to have potential for a substantial impact on the environment. It may be determined that additional information or a detailed environmental statement is required before these forest practices may be conducted.

.*(a) Aerial application of pesticides in a manner identified as having the potential for a substantial impact on the environment under WAC 222-16-070 or ground application of a pesticide within a Type A or B wetland.

(b) Specific forest practices listed in WAC 222-16-080 on lands designated as:

(i) Critical wildlife habitat (state) of threatened or endangered species; or

(ii) Critical habitat (federal) of threatened or endangered species except those excluded by the board under WAC 222-16-080(3).

(c) Harvesting, road construction, aerial application of pesticides and site preparation on all lands within the boundaries of any national park, state park, or any park of a local governmental entity, except harvest of less than 5 MBF within any developed park recreation area and park managed salvage of merchantable forest products.

.*(d) Construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas ((on slide prone areas as defined in WAC 222-24-020(6) and field verified by the department,)) in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC, ((when such slide prone areas occur on an uninterrupted slope above water typed pursuant to WAC 222-16-030,)) on landforms that are likely to be or are potentially unstable, where such landforms are located above any typed water, Type A or Type B Wetland, or capital improvement of the state or its political subdivisions; or threaten public safety, where there is potential for a substantial landslide or debris ((flow or mass failure)) torrent to cause significant impact to public resources.

(i) It is assumed that slope instability is likely in inner gorges, bedrock hollows, and convergent headwalls steeper than 35 (70%), on the toes of deep-seated landslides steeper than 33 (65%), or on any soil-covered slopes steeper than 38 (80%). An analysis of the stability of the site and the proposed forest practices by a qualified expert, in accordance with WAC 222-10-030, shall be submitted with the application.

(ii) It is assumed that slope instability is possible in inner gorges, bedrock hollows, convergent headwalls, or on any other soil-covered slopes steeper than 30 (60%), or on the toes of any deep-seated landslides. For such slopes that are gentler than those described in (i), an evaluation of the stability of the site and the proposed forest practices by a trained field forester shall be submitted with an application, documenting the lines of evidence indicating the condition of the potentially unstable areas. This information shall be reviewed by a qualified expert who will be responsible for the information.

(iii) The potential for delivery of sediment and debris, and the length of potential channel disturbance zones, shall be determined by accepted methods as described in the Forest Practices Board Manual. If a local determination of delivery potential has not or can not be made from aerial photographs or field evidence, it will be assumed that delivery can occur downhill to a distance 500 feet below the point where the slope becomes gentler than 26 (50%). For all designated delivery areas and channel disturbance zones, channel conditions and potential problems relating to slope instability and debris torrents shall be evaluated, and the information submitted with the stability analyses.

(iv) The information submitted, and the review by the department (including the decision on classification), shall be in accordance with WAC 222-10-030.

.*(e) Timber harvest in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC, ((on slide prone areas, field verified by the department,)) on landforms that are likely to be or are potentially unstable, where soils, geologic structure, and local hydrology indicate that canopy removal has the potential for increasing slope instability, ((when such areas occur on an uninterrupted slope above any water typed pursuant to WAC 222-16-030,)) where such landforms are located above any typed water, Type A or Type B Wetland, or a capital improvement of the state or its political subdivisions, or privately owned structure, where there is a potential for a substantial landslide or debris ((flow or mass failure)) torrent to cause significant impact to public resources.

(i) It is assumed that slope instability is likely in inner gorges, bedrock hollows, and convergent headwalls steeper than 35 (70%), on the toes of deep-seated landslides steeper than 33 (65%), or on any soil-covered slopes steeper than 38 (80%). An analysis of the stability of the site and the proposed forest practices by a qualified expert, in accordance with WAC 222-10-030, shall be submitted with the application.

(ii) It is assumed that slope instability is possible in inner gorges, bedrock hollows, convergent headwalls steeper than 33 (65%), on any other soil-covered slopes steeper than 35 (70%), or on the toes of deep-seated landslides steeper than 30 (60%). For such slopes that are gentler than those described in (i), an evaluation of the stability of the site and the proposed forest practices by a trained field forester shall be submitted with the application, documenting the lines of evidence indicating the condition of the potentially unstable areas. This information shall be reviewed by a qualified expert who will be responsible for the information.

(iii) The potential for delivery of sediment and debris, and the length of potential channel disturbance zones, shall be determined by accepted methods as described in the Forest Practices Board Manual. If a local determination of delivery potential has not or can not be made from aerial photographs or field evidence, it will be assumed that delivery can occur downhill to a distance 500 feet below the point where the slope becomes gentler than 26 (50%). For all designated delivery areas and channel disturbance zones, channel conditions and potential problems relating to slope instability and debris torrents shall be evaluated, and the information submitted with the stability analyses.

(iv) The information submitted, and the review by the department (including the decision on classification), shall be in accordance with WAC 222-10-030.

(f) Timber harvest, in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC, construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas on snow avalanche slopes within those areas designated by the department, in consultation with department of transportation, as high avalanche hazard.

(g) Timber harvest, construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas on archaeological or historic sites registered with the Washington state office of archaeology and historic preservation, or on sites containing evidence of Native American cairns, graves, or glyptic records, as provided for in chapters 27.44 and 27.53 RCW. The department shall consult with affected Indian tribes in identifying such sites.

.*(h) Forest practices subject to a watershed analysis conducted under chapter 222-22 WAC in an area of resource sensitivity identified in that analysis which deviates from the prescriptions (which may include an alternate plan) in the watershed analysis.

.*(i) Filling or draining of more than 0.5 acre of a wetland.

.*(j) Construction of roads, landings, rock quarries, gravel pits, borrow pits, and spoil disposal areas within 200 feet of a Type S water.

(2) "Class IV - general." Applications involving the following circumstances are "Class IV - general" forest practices unless they are listed in "Class IV - special." Upon receipt of an application, the department will determine the lead agency for purposes of compliance with the State Environmental Policy Act pursuant to WAC 197-11-924 and 197-11-938(4) and RCW 43.21C.037(2). Such applications are subject to a 30-day period for approval unless the lead agency determines a detailed statement under RCW 43.21C.030 (2)(c) is required. Upon receipt, if the department determines the application is for a proposal that will require a license from a county/city acting under the powers enumerated in RCW 76.09.240, the department shall notify the applicable county/city under WAC 197-11-924 that the department has determined according to WAC 197-11-938(4) that the county/city is the lead agency for purposes of compliance with State Environmental Policy Act.

(a) Forest practices (other than those in Class I) on lands platted after January 1, 1960, or on lands being converted to another use.

(b) Forest practices which would otherwise be Class III, but which are taking place on lands which are not to be reforested because of likelihood of future conversion to urban development. (See WAC 222-16-060 and 222-34-050.)

(3) "Class I." Those operations that have been determined to have no direct potential for damaging a public resource are Class I forest practices. When the conditions listed in "Class IV - Special" are not present, these operations may be commenced without notification or application.

(a) Culture and harvest of Christmas trees and seedlings.

.*(b) Road maintenance except: (i) Replacement of bridges and culverts across ((Type 1, 2, 3 or flowing Type 4 Waters)) any typed waters; or (ii) movement of material that has a direct potential for entering ((Type 1, 2, 3 or flowing Type 4 Waters)) any typed waters or Type A or B Wetlands.

.*(c) Construction of landings less than 1 acre in size, if not within a shoreline area of a Type ((1 Water)) S water, the riparian management zone of a Type ((2 or 3 Water, the ordinary high-water mark of a Type 4 Water)) any typed water, a wetland management zone, a wetland, or the CRGNSA special management area.

.*(d) Construction of less than 600 feet of road on a sideslope of 40 percent or less if the limits of construction are not within the ((shoreline area of a Type 1 Water, the riparian management zone of a Type 2 or Type 3 Water, the ordinary high-water mark of a Type 4 Water)) 200 feet of any typed water, a wetland management zone, a wetland, or the CRGNSA special management area.

.*(e) Installation or removal of a portable water crossing structure where such installation does not take place within the shoreline area of a Type ((1 Water)) S water and does not involve disturbance of the beds or banks of any waters.

.*(f) Initial installation and replacement of relief culverts and other drainage control facilities not requiring a hydraulic permit.

(g) Rocking an existing road.

(h) Loading and hauling timber from landings or decks.

(i) Precommercial thinning and pruning, if not within the CRGNSA special management area.

(j) Tree planting and seeding.

(k) Cutting and/or removal of less than 5,000 board feet of timber (including live, dead and down material) for personal use (i.e., firewood, fence posts, etc.) in any 12-month period, if not within the CRGNSA special management area.

(l) Emergency fire control and suppression.

(m) Slash burning pursuant to a burning permit (RCW 76.04.205).

.*(n) Other slash control and site preparation not involving either off-road use of tractors on slopes exceeding 40 percent or off-road use of tractors within the shorelines of a Type ((1 Water)) S water, the riparian management zone of any ((Type 2 or 3 Water, or the ordinary high-water mark of a Type 4 Water,)) type water, a wetland management zone, a wetland, or the CRGNSA special management area.

.*(o) Ground application of chemicals, if not within the CRGNSA special management area. (See WAC 222-38-020 and 222-38-030.)

.*(p) Aerial application of chemicals (except insecticides), outside of the CRGNSA special management area when applied to not more than 40 contiguous acres if the application is part of a combined or cooperative project with another landowner and where the application does not take place within 100 feet of lands used for farming, or within 200 feet of a residence, unless such farmland or residence is owned by the forest landowner. Provisions of chapter 222-38 WAC shall apply.

(q) Forestry research studies and evaluation tests by an established research organization.

(r) Any of the following if none of the operation or limits of construction takes place within the shoreline area of a Type ((1 Water)) S water or the riparian management zone of a Type ((2 or 3 Water)) F water, ((the ordinary high-water mark of a Type 4 Water or flowing Type 5 Water)) bankfull width of a Type N water, or within the CRGNSA special management area and the operation does not involve off-road use of tractor or wheeled skidding systems on a sideslope of greater than 40 percent:

(i) Any forest practices within the boundaries of existing golf courses.

(ii) Any forest practices within the boundaries of existing cemeteries which are approved by the cemetery board.

(iii) Any forest practices involving a single landowner where contiguous ownership is less than two acres in size.

(s) Removal of beaver structures from culverts on active and inactive roads. A hydraulics project approval from the Washington department of fish and wildlife may be required.

(4) "Class II." Certain forest practices have been determined to have a less than ordinary potential to damage a public resource and may be conducted as Class II forest practices: Provided, That no forest practice enumerated below may be conducted as a Class II forest practice if the operation requires a hydraulic project approval (RCW 75.20.100) or is within a "shorelines of the state," or involves a bond in lieu of landowners signature (other than renewals) or is a multiyear permit. Such forest practices require an application. No forest practice enumerated below may be conducted as a "Class II" forest practice if it takes place on lands platted after January 1, 1960, or on lands being converted to another use. Such forest practices require a Class IV application. Class II forest practices are the following:

(a) Renewal of a prior Class II notification where no change in the nature and extent of the forest practices is required under rules effective at the time of renewal.

(b) Renewal of a previously approved Class III or IV forest practice application where:

(i) No modification of the uncompleted operation is proposed;

(ii) No notices to comply, stop work orders or other enforcement actions are outstanding with respect to the prior application; and

(iii) No change in the nature and extent of the forest practice is required under rules effective at the time of renewal.

.*(c) Any of the following if none of the operation or limits of construction takes place within the riparian management zone of a Type 2 or 3 Water, within the ordinary high-water mark of a Type 4 Water, within a wetland management zone, within a wetland, or within the CRGNSA special management area:

(i) Construction of advance fire trails.

(ii) Opening a new pit of, or extending an existing pit by, less than 1 acre.

.*(d) Any of the following if none of the operation or limits of construction takes place within ((the riparian management zone of a Type 2 or 3 Water, within the ordinary high-water mark of a Type 4 Water)) 200 feet of the bankfull width of any typed waters, within a wetland management zone or within a wetland; and if none of the operations involve off-road use of tractor or wheeled skidding systems on a sideslope of greater than 40 percent:

Salvage of logging residue.

.*(e) Any of the following if none of the operation or limits of construction takes place within the riparian management zone of ((a Type 2 or 3 Water, within the ordinary high-water mark of a Type 4 Water)) any typed water, within a wetland management zone, within a wetland, or within the CRGNSA special management area, and if none of the operations involve off-road use of tractor or wheeled skidding systems on a sideslope of greater than 40 percent, and if none of the operations are located on lands with a likelihood of future conversion (see WAC 222-16-060):

(i) West of the Cascade summit, partial cutting of 40 percent or less of the live timber volume.

(ii) East of the Cascade summit, partial cutting of 5,000 board feet per acre or less.

(iii) Salvage of dead, down, or dying timber if less than 40 percent of the total timber volume is removed in any 12-month period.

(iv) Any harvest on less than 40 acres.

(v) Construction of ((600 or more feet of)) roads outside areas of high surface erosion, unstable areas and hydric soils, provided that the department shall be notified at least 2 business days before commencement of the construction.

(5) "Class III." Forest practices not listed under Classes IV, I or II above are "Class III" forest practices. Among Class III forest practices are the following:

(a) Those requiring hydraulic project approval (RCW 75.20.100).

.*(b) Those within the shorelines of the state other than those in a Class I forest practice.

.*(c) Aerial application of insecticides, except where classified as a Class IV forest practice.

.*(d) Aerial application of chemicals (except insecticides), except where classified as Class I or IV forest practices.

.*(e) Harvest or salvage of timber except where classed as Class I, II or IV forest practices.

.*(f) All road construction and reconstruction except as listed in Classes I, II and IV forest practices.

(g) Opening of new pits or extensions of existing pits over 1 acre.

.*(h) Road maintenance involving:

(i) Replacement of bridges or culverts across ((Type 1, 2, 3, or flowing Type 4 Waters)) any typed waters; or

(ii) Movement of material that has a direct potential for entering ((Type 1, 2, 3 or flowing Type 4 Waters)) any typed waters or Type A or B Wetlands.

(i) Operations involving an applicant's bond in lieu of a landowner's signature.

(j) Site preparation or slash abatement not listed in Classes I or IV forest practices.

(k) Harvesting, road construction, site preparation or aerial application of pesticides on lands which contain cultural, historic or archaeological resources which, at the time the application or notification is filed, are:

(i) On or are eligible for listing on the National Register of Historic Places; or

(ii) Have been identified to the department as being of interest to an affected Indian tribe.

(l) Harvesting exceeding 19 acres in a designated difficult regeneration area.

(m) Utilization of an alternate plan. See WAC 222-12-040.

.*(n) Any filling of wetlands, except where classified as Class IV forest practices.

.*(o) Multiyear permits.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-16-050, filed 3/13/98, effective 5/1/98; 97-24-091, § 222-16-050, filed 12/3/97, effective 1/3/98; 93-12-001, § 222-16-050, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-16-050, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-16-050, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-16-050, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), § 222-16-050, 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), § 222-16-050, filed 8/3/82, effective 10/1/82; Order 263, § 222-16-050, filed 6/16/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION (Amending WSR 98-07-047, filed 3/13/98, effective 5/1/98)

WAC 222-20-010  Applications and notifications--Policy. (1) No Class II, III or IV forest practices shall be commenced or continued unless the department has received a notification for Class II forest practices, or approved an application for Class III or IV forest practices pursuant to the act. Where the time limit for the department to act on the application has expired, and none of the conditions in WAC 222-20-020(1) exist, the operation may commence. (NOTE: OTHER LAWS AND REGULATIONS AND/OR PERMIT REQUIREMENTS MAY APPLY. SEE CHAPTER 222-50 WAC.)

(2) The department shall prescribe the form and contents of the notification and application, which shall specify what information is needed for a notification, and the information required for the department to approve or disapprove the application.

(3) Applications and notifications for operations not converting to another use shall be signed by the landowner, the timber owner and the operator, or the operator and accompanied by a consent form signed by the timber owner and the landowner. A consent form may be another document if it is signed by the landowner(s) and it contains a statement acknowledging that he/she is familiar with the Forest Practices Act, including the provisions dealing with conversion to another use (RCW 76.09.060(3)). Where the application is not signed by the landowner, the department shall, provided all the other requirements contained in chapter 222-20 WAC are met, approve the application without the signature of the landowner if:

(a) The operator or timber owner provides legal evidence of timber rights, ownership, or other legal rights;

(b) The timber owner or operator posts a bond, in an amount determined by and a form acceptable to the department, securing compliance with the requirements of the forest practices regulations; and

(c) The operator or timber owner provides evidence of reasonably advance notification to the landowner of the proposed forest practice and that the landowner has been requested to sign the application, a copy of which has been made available to the landowner: Provided, That in lieu of such evidence the applicant may submit a sworn statement indicating inability to locate the landowner after a reasonable good faith attempt to locate and notify the landowner of the proposed forest practice.

(4) Where an application for a conversion is not signed by the landowner or accompanied by a consent form, as outlined in subsection (3) of this section, the department shall not approve the application. Applications and notifications for the development or maintenance of utility rights of way shall not be considered to be conversions.

(5) Transfer of the approved application or notification to a new landowner, timber owner or operator requires written notice by the original landowner or applicant to the department and should include the original application or notification number. This written notice shall be in a form acceptable to the department and shall contain an affirmation signed by the new landowner, timber owner, or operator, as applicable, that he/she agrees to be bound by all conditions on the approved application or notification. In the case of a transfer of an application previously approved without the landowner's signature the new timber owner or operator must submit a bond securing compliance with the requirements of the forest practices regulations as determined necessary by the department. If an application or notification ((indicates that the landowner or timber owner is also)) has been signed by the operator, ((or an operator signed the application,)) then no notice need be given regarding any change in subcontractors or similar independent contractors working under the supervision of the operator of record. Operations on an approved application/notification cannot commence until the name of the operator is known and the written notice has been provided to the department.

(6) Applications and notifications must be delivered to the department at the appropriate region office. Delivery should be in person or by registered or certified mail.

(7) Applications and notifications shall be considered received on the date and time shown on any registered or certified mail receipt, or the written receipt given at the time of personal delivery, or at the time of receipt by general mail delivery. Applications or notifications that are not complete, or are inaccurate will not be considered officially received until the applicant furnishes the necessary information to complete the application. A review statement from the U.S. Forest Service that evaluates compliance of the forest practices with the CRGNSA special management area guidelines is necessary information for an application or notification within the CRGNSA special management area. The review statement requirement shall be waived if the applicant can demonstrate the U.S. Forest Service received a complete plan application and failed to act within 45 days. An environmental checklist (WAC 197-11-315) is necessary information for all Class IV applications. A local government entity clearing and/or grading permit is necessary information for all Class IV applications on lands that will be converted to a use other than commercial timber production or on lands which have been platted after January 1, 1960, if the local government entity has jurisdiction and has an ordinance requiring such permit. If a notification or application is delivered in person to the department by the operator or the operator's authorized agent, the department shall immediately provide a dated receipt. In all other cases, the department shall immediately mail a dated receipt to the applicant.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-20-010, filed 3/13/98, effective 5/1/98; 93-12-001, § 222-20-010, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-20-010, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-010, filed 11/16/87, effective 1/1/88; 82-18-053 (Resolution No. 82-2), § 222-20-010, filed 8/31/82. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-20-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-20-010, filed 6/16/76.]

NEW SECTION

WAC 222-20-015  Multiyear permits. .*(1) Where a watershed analysis has been completed for a WAU under WAC 222-22 a landowner(s) may apply for a five-year permit. The application for this permit must contain the proposed forest practices for the landowner over the five year period. The application must also identify if the proposed forest practices are within areas of resource sensitivity and, if so, what prescriptions will be used in these areas. Once the permit expires, a new application may not be applied for until the five-year review of the watershed analysis has been completed.

.*(2) Where a landowner has submitted a road maintenance and abandonment plan that involves forest practices that are more than Class I activities that require an application or notification, that plan may be considered an application for a multiyear permit where the schedule for implementing the road maintenance and abandonment is longer than two years, but does not exceed five years. The forest practices such as replacement of culverts, reconstruction of roads and abandonment need to be in adequate detail to review for protection of public resources.

[]

AMENDATORY SECTION (Amending WSR 87-23-036, filed 11/16/87, effective 1/1/88)

WAC 222-20-020  Application time limits. (1) A properly completed application shall be approved, conditioned or disapproved within 30 calendar days for Class III and Class IV forest practices, except:

(a) To the extent the department is prohibited from approving the application by the act.

(b) For "Class IV" applications when the department or the lead agency has determined that a detailed environmental statement must be made, the application must be approved, conditioned or disapproved within 60 days, unless the commissioner of public lands promulgates a formal order specifying a later date for completion of the detailed environmental statement and final action on the application. At least 10 days before promulgation of such an order extending the time, the applicant shall be given written notice that the department is requesting such extension; giving the reasons the process cannot be completed within such period; and stating that the applicant may comment in writing to the commissioner of public lands or obtain an informal conference with the department regarding the proposed extension.

(c) When they involve lands platted after January 1, 1960, or lands to be converted, the applicable time limit shall be no less than 14 business days from transmittal to the county unless the county has waived its right to object or has consented to approval of the application.

(2) Unless the county has waived its rights under the act or consents to approval, the department shall not approve an application involving lands platted after January 1, 1960, in the process of being platted or proposed to be converted to another use until at least 14 business days from the date of transmittal to the county.

(3) Where a notification is submitted for operations which the department determines involve Class III or IV forest practices, the department shall issue a stop work order or take other appropriate action. If the operations were otherwise in compliance with the act and forest practices regulations, no penalty should be imposed for those operations which occurred prior to the enforcement action: Provided, That no damage to a public resource resulted from such operations, and the operations commenced more than 5 days from receipt by the department of the notification.

(4) If the department fails to approve or disapprove an application or any portion thereof within the applicable time limit, the application shall be deemed approved and the operation may commence: Provided, That this provision shall not apply where:

(a) The county objects and the application involves lands platted after January 1, 1960, or lands to be converted where the county's right of objection is 14 business days which may be longer than the approval time limit.

(b) The department is prohibited from approving the application by the act.

(c) Compliance with the State Environmental Policy Act requires additional time.

(5) If seasonal field conditions prevent the department from being able to properly evaluate the application, the department may disapprove the application until field conditions allow for an on-site review.

.*(6) Multiyear permits will be approved, conditioned or disapproved within 60 days of receiving a complete application.

[Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-020, 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), § 222-20-020, filed 8/3/82, effective 10/1/82; Order 263, § 222-20-020, filed 6/16/76.]

AMENDATORY SECTION (Amending Order 263, filed 6/16/76)

WAC 222-20-070  Emergency forest practices plan. Prior to this exemption an operational plan identifying expectations for general practices must be in place. Once agreed upon ((No)) no prior notification or application shall be required for emergency forest practices necessitated by and commenced during or immediately after fire, flood, windstorm, earthquake, structural failure or other catastrophic event. Within 48 hours after commencement of such practice, the operator shall submit an application or notification to the department with an explanation why emergency action was necessary. Such emergency forest practices are subject to these regulations: The general practices shall identify how the operator will take reasonable action to minimize damage to forest lands, timber or public resources from the direct or indirect effects of the catastrophic event and: Provided further, The operator shall comply with any requirements of a notice to comply or stop work order as if conducted pursuant to an approved application. This plan will be included in the road maintenance and abandonment plan and updated on an annual basis at the request of the department.

[Order 263, § 222-20-070, filed 6/16/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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

WAC 222-22-010  Policy. .*(1) Public resources may be adversely affected by the interaction of two or more forest practices. The purpose of this rule is to address these cumulative effects of forest practices on the public resources of fish, water, including nonfish biota and capital improvements of the state or its political subdivisions. The long-term objective of this rule is to protect and restore these public resources and the productive capacity of fish habitat adversely affected by forest practices while maintaining a viable forest products industry. The board intends that this be accomplished through prescriptions designed to protect and ((allow the recovery of)) recover fish, water, and capital improvements of the state or its political subdivisions, through enforcement against noncompliance of the forest practice rules in this Title 222 WAC, and through ((voluntary)) mitigation measures. This system also ((allows for)) in some cases requires monitoring, subsequent watershed analysis, and adaptive management.

.*(2) Adaptive management in a watershed analysis process requires advances in technology and cooperation among resource managers. The board finds that it is appropriate to promulgate rules to address certain cumulative effects by means of the watershed analysis system, while recognizing the pioneering nature of this system and the need to monitor its success in predicting and preventing adverse change to fish, water, and capital improvements of the state and its political subdivisions.

.*(3) Many factors other than forest practices can have a significant effect on the condition of fish, water, and capital improvements of the state or its political subdivisions. Nonforest practice contributions to cumulative effects should be addressed by the appropriate jurisdictional authorities. When a watershed analysis identifies a potential adverse effect on fish, water, and capital improvements of the state or its political subdivisions from activities that are not regulated under chapter 76.09 RCW, the department should notify any governmental agency or Indian tribe having jurisdiction over those activities.

.*(4) The rules in this chapter set forth a system for identifying the probability of change and the likelihood of this change adversely affecting specific characteristics of fish, water, and capital improvements of the state or its political subdivisions, and for using forest management prescriptions to avoid or minimize significant adverse effects from forest practices. The rules in this chapter are in addition to, and do not take the place of, the other forest practices rules in this Title 222 WAC.

.*(5) These rules are intended to be applied and should be construed in such a manner as to minimize the delay associated with the review of individual forest practice applications and notifications by increasing the predictability of the process and the appropriate management response.

[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-22-010, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-22-010, filed 7/2/92, effective 8/2/92.]

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

WAC 222-22-030  Qualification of watershed resource analysts, specialists, and field managers. .*(1) The department shall set the minimum qualifications for analysts participating in level 1 assessments conducted under WAC 222-22-050, for specialists participating in level 2 assessments conducted under WAC 222-22-060, and for field managers participating in recommendation of prescriptions under WAC 222-22-070. The minimum qualifications shall be specific for the disciplines needed to participate in level 1 and level 2 assessments and in the recommendations of prescriptions, and shall include, at a minimum, formal education in the relevant discipline and field experience. Minimum qualifications for analysts participating in level 2 assessments should typically include a graduate degree in the relevant discipline.

.*(2) The department shall coordinate with relevant state and federal agencies, affected Indian tribes, forest land owners, local government entities, and the public to seek and utilize available qualified expertise to participate in watershed analysis.

.*(3) Qualified analysts, specialists, and field managers shall, while and only for the purpose of conducting a watershed analysis or monitoring in a WAU, be duly authorized representatives of the department for the purposes of RCW 76.09.150 making watershed analysis a public process.

.*(4) An individual may qualify in more than one science or management skill. Qualification under subsection (1) of this section shall be effective for 5 years. When a qualification expires, a person requesting requalification shall meet the criteria in effect at the time of requalification.

.*(5) The department shall provide and coordinate training for, maintain a register of, and monitor the performance of qualified analysts, specialists, and field managers by region. The department shall disqualify analysts, specialists, and field managers who fail to meet the levels of performance required by the qualification standards.

[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-22-030, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-22-030, filed 7/2/92, effective 8/2/92.]

NEW SECTION

WAC 222-22-035  Watershed screening. The department or a landowner that owns ten percent of the nonfederal forest land in a WAU will screen each WAU to determine if watershed analysis is required and whether a level 1 assessment or level 2 assessment is required. The screen will be developed in consultation with TFW, with objective of determining which WAUs may require additional environmental protection where the standard rules are not adequate to protect public resources.

[]

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-22-040  Watershed prioritization. (1) The department shall determine, by region, the order in which it will analyze WAUs that require watershed analysis (WAC 222-22-035). The department shall cooperate with the departments of ecology, fish and wildlife, affected Indian tribes, forest land owners, and the public in setting priorities. In setting priorities or reprioritizing WAUs, the department shall consider the availability of participation and assistance that may be provided by affected Indian tribes and local government entities.

.*(2) Except as set forth in subsection (3) of this section, the department shall undertake a watershed analysis on each WAU, in the order established under subsection (1) of this section.

.*(3) The owner or owners of ten percent or more of the nonfederal forest land acreage in a WAU may notify the department in writing that the owner or owners intend to conduct a level 1 assessment, level 2 assessment, or both, and the prescription recommendation process on the WAU under this chapter at their own expense. The notice shall identify the teams proposed to conduct the watershed analysis, which shall be comprised of individuals qualified by the department pursuant to WAC 222-22-030. The department shall promptly notify any owner or owners sending notice under this subsection if any member of the designated teams is not so qualified. Within 30 days of delivering a notice to the department under this subsection, the forest land owner or owners shall begin the level 1 assessment under WAC 222-22-050 or, at its option, the level 2 assessment under WAC 222-22-060. An approved forest land owner team shall, while and only for the purposes of conducting a watershed analysis in a WAU, be a duly authorized representative of the department for the purposes of RCW 76.09.150. The board encourages forest land owners conducting assessments under this chapter to include available, qualified expertise from state and federal agencies, affected Indian tribes, forest land owners, local government entities, and the public.

.*(4) Before beginning an analysis in a WAU, the department or the forest land owner conducting the analysis shall provide reasonable notice, including notice by regular United States mail where names and addresses have been provided to the department, to all forest land owners in the WAU, and to affected Indian tribes. The department or the forest land owner shall provide reasonable notice to the public and to state, federal, and local government entities, by, among other things, posting the notice conspicuously in the office of the departmental region containing the WAU. The notice shall be in a form designated by the department and give notice that an analysis is being conducted, by whose team, the time period of the analysis, and the dates and locations in which the draft analysis will be available for review and comment.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-22-040, filed 12/3/97, effective 1/3/98. Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-22-040, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-22-040, filed 7/2/92, effective 8/2/92.]

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-22-050  Level 1 watershed resource assessment. .*(1) To begin a watershed resource analysis on a WAU, the department shall assemble a level 1 assessment team consisting of analysts qualified under WAC 222-22-030(1). A forest land owner or owners acting under WAC 222-22-040(3) may assemble a level 1 assessment team consisting of analysts qualified under WAC 222-22-030(1) or, at its option, may begin the analysis under WAC 222-22-060. Each level 1 team shall include persons qualified in the disciplines indicated as necessary in the methodology, and should generally include persons qualified in:

(a) Forestry;

(b) Forest hydrology;

(c) Forest soil science or geology;

(d) Fisheries science; and

(e) Geomorphology.

Any owner, and any cooperating group of owners, of ten percent or more of the nonfederal forest land acreage in the WAU and any affected Indian tribe shall be entitled to include one qualified individual to participate on the team at its own expense.

.*(2) The level 1 team shall perform an inventory of the WAU utilizing the methodology, indices of resource condition, and checklists set forth in the manual in accordance with the following:

(a) The team shall survey the WAU for fish, water, and capital improvements of the state or its political subdivisions and shall display their location on a map of the WAU. The team shall determine the current condition of the resource characteristics of these resources, shall classify their condition as "good," "fair," or "poor," and shall display this information on the map of the WAU. The criteria used to determine current resource conditions shall include indices of resource condition, in addition to such other criteria as may be included in the manual. The indices will include two levels, which will distinguish between good, fair, and poor conditions.

(b) The team shall assess the likelihood that identified watershed processes in a given physical location will be adversely changed by one forest practice or by cumulative effects and that, as a result, a material amount of water, wood, sediment, or energy (e.g., affecting temperature) will be delivered to fish, water, or capital improvements of the state or its political subdivisions. (This process is referred to in this chapter as "adverse change and deliverability.") (For example, the team will address the likelihood that road construction will result in mass wasting and a slide that will in turn reach a stream.) The team shall rate this likelihood of adverse change and deliverability as "high," "medium," "low," or "indeterminate." Those likelihoods rated high, medium, or indeterminate shall be displayed on the map of the WAU.

(c) For each instance of high, medium, or indeterminate likelihood of adverse change and deliverability identified under (b) of this subsection, the team shall assess the vulnerability of potentially affected resource characteristics. Criteria for resource vulnerability shall include indices of resource condition as described in (a) of this subsection and quantitative means to assess the likelihood of material adverse effects to resource characteristics caused by forest practices. (For example, the team will assess the potential damage that increased sediment caused by a slide reaching a stream will cause to salmon spawning habitat that is already in fair or poor condition.) The team shall rate this vulnerability "high," "medium," "low," or "indeterminate" and shall display those vulnerabilities on the map of the WAU. If there are no other criteria in the manual to assess vulnerability at the time of the assessment, current resource condition shall be used, with good condition equivalent to low vulnerability, fair condition equivalent to medium vulnerability, and poor condition equivalent to high vulnerability.

(d) The team shall identify as areas of resource sensitivity, as provided in table 1 of this section, the locations in which a management response is required under WAC 222-22-070(3) because, as a result of one forest practice or of cumulative effects, there is a combination of a high, medium, or indeterminate likelihood of adverse change and deliverability under (b) of this subsection and a low, medium, high, or indeterminate vulnerability of resource characteristics under (c) of this subsection:

Table 1

Areas of Resource Sensitivity and Management Response

The team shall display the areas of resource sensitivity on the map of the WAU.

(e) The decision criteria used to determine low, medium, and high likelihood of adverse change and deliverability shall be as set forth in the manual. A low designation generally means there is minimal likelihood that there will be adverse change and deliverability. A medium designation generally means there is a significant likelihood that there will be adverse change and deliverability. A high designation generally means that adverse change and deliverability is more likely than not with a reasonable degree of confidence. Any areas identified as indeterminate in the level 1 assessment shall be classified for the purposes of the level 1 assessment as medium until a level 2 assessment is done on the WAU under WAC 222-22-060, during which the uncertainties shall be resolved.

(f) The team shall prepare a causal mechanism report regarding the relationships of each process identified in (b) and (c) of this subsection. The report shall demonstrate that the team's determinations were made in accordance with the manual. If, in the course of conducting a level 1 assessment, the team identifies areas in which voluntary corrective action will significantly reduce the likelihood of material, adverse effects to the condition of a resource characteristic, the team shall include this information in the report, and the department shall convey this information to the applicable land owner.

.*(3) ((Within 21 days of mailing notice under WAC 222-22-040(4), the)) The level 1 team shall submit to the department its draft level 1 assessment, which shall consist of the map of the WAU marked as set forth in this section and the causal mechanism report proposed under subsection (2)(f) of this section. If the level 1 team is unable to agree as to one or more resource sensitivities or potential resource sensitivities, or the causal mechanism report, alternative designations and an explanation therefor shall be included in the draft assessment. Where the draft level 1 assessment delivered to the department contains alternative designations, the department shall within 21 days of the receipt of the draft level 1 assessment make its best determination and approve that option which it concludes most accurately reflects the proper application of the methodologies, indices of resource condition, and checklists set forth in the manual.

.*(4) If the level 1 assessment contains any areas in which the likelihood of adverse change and deliverability or resource vulnerability are identified as indeterminate under this section or if the level 1 methodology recommends it, the department shall assemble a level 2 assessment team under WAC 222-22-060 to resolve the uncertainties in the assessment, unless a forest land owner acting under WAC 222-22-040(3) has conducted a level 2 assessment on the WAU.

.*(5) Pending the completion of the level 2 assessment, if any, on the WAU, the department shall select interim prescriptions using the process and standards described in WAC 222-22-070 (1), (2), and (3) and 222-22-080(3) and shall apply them to applications and notifications as provided in WAC 222-22-090 (1) and (2). Before submitting recommended interim prescriptions to the department, the field managers' team under WAC 222-22-070(1) shall review the recommended prescriptions with available representatives of the jurisdictional management authorities of the fish, water, and capital improvements of the state or its political subdivisions in the WAU, including, but not limited to, the departments of fish and wildlife, ecology, and affected Indian tribes.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-22-050, filed 12/3/97, effective 1/3/98. Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-22-050, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-22-050, filed 7/2/92, effective 8/2/92.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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

WAC 222-22-060  Level 2 watershed resource assessment. .*(1) The department, or forest land owner acting under WAC 222-22-040(3), may assemble a level 2 assessment team either, in the case of a forest land owner, to begin a watershed analysis or to review the level 1 assessment on a WAU. The level 2 team shall consist of specialists qualified under WAC 222-22-030(1). Each level 2 team shall include persons qualified in the disciplines indicated as necessary in the methodology, and should generally include persons qualified in:

(a) Forestry;

(b) Forest hydrology;

(c) Forest soil science or geology;

(d) Fisheries science; and

(e) Geomorphology.

Any owner, and any cooperating group of owners, of ten percent or more of the nonfederal forest land acreage in the WAU and any affected Indian tribe shall be entitled to designate one qualified member of the team at its own expense.

.*(2) The level 2 team shall perform an assessment of the WAU utilizing the methodology, indices of resource condition, and checklist set forth in the manual in accordance with the following:

(a) If a level 1 assessment has not been conducted under WAC 222-22-050, the assessment team shall complete the tasks required under WAC 222-22-050(2), except that the level 2 team shall not rate any likelihood of adverse change and deliverability or resource vulnerability as indeterminate.

(b) If the level 2 team has been assembled to review a level 1 assessment, the level 2 team shall, notwithstanding its optional review of all or part of the level 1 assessment, review each likelihood of adverse change and deliverability and resource vulnerability rated as indeterminate and shall revise each indeterminate rating to low, medium, or high and shall revise the map of the WAU accordingly.

.*(3) ((Within 60 days of mailing notice under WAC 222-22-040(4) where a watershed analysis begins with a level 2 assessment or within 60 days of beginning a level 2 assessment after completion of a level 1 assessment, the)) The level 2 team shall submit to the department its draft level 2 assessment, which shall consist of the map of the WAU and the causal mechanism report.

.*(4) The level 2 team shall endeavor to produce a consensus report. If the level 2 team is unable to agree as to one or more areas of resource sensitivity or the casual mechanism report, alternative designations and an explanation therefor shall be included in the draft assessment. Where the draft level 2 assessment delivered to the department contains alternative designations or reports, the department shall within 30 days of the receipt of the draft level 2 assessment make its best determination and approve that option which it concludes most accurately reflects the proper application of the methodologies, indices of resource condition, and checklists set forth in the manual.

[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-22-060, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-22-060, filed 7/2/92, effective 8/2/92.]

NEW SECTION

WAC 222-22-065  Review of assessments. After the assessment is complete, a review of the assessment will be coordinated by the department, to ascertain if the assessment met the intent of the manual. If the assessment is not adequate, then the issues must be resolved before the field managers team begins.

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

WAC 222-22-070  Prescription recommendation. .*(1) For each WAU for which a watershed analysis is undertaken, the department, or forest land owner acting under WAC 222-22-040(3), shall assemble a team of field managers qualified under WAC 222-22-030(1). The team shall include persons qualified in the disciplines indicated as necessary in the methodology, and shall generally include persons qualified in:

(a) Forest resource management;

(b) Forest harvest and road systems engineering;

(c) Forest hydrology; and

(d) Fisheries science or management.

Any owner, and any cooperating group of owners, of ten percent or more of the nonfederal forest land acreage in the WAU and any affected Indian tribe shall be entitled to include one qualified individual to participate on the team at its own expense.

.*(2) Each forest land owner in a WAU shall have the right to submit to the department or the forest land owner conducting the watershed analysis prescriptions for areas of resource sensitivity on its land. If these prescriptions are received within the time period described in subsection (4) of this section, they shall be considered for inclusion in the watershed analysis.

.*(3) For each identified area of resource sensitivity, the field managers' team shall, in consultation with the level 1 and level 2 teams, if any, select and recommend to the department prescriptions. These prescriptions shall be reasonably designed to minimize, or to prevent or avoid, as set forth in table 1 in WAC 222-22-050 (2)(d), the likelihood of adverse change and deliverability that has the potential to cause a material, adverse effect to resource characteristics in accordance with the following:

(a) The prescriptions shall be designed to provide forest land owners and operators with as much flexibility as is reasonably possible while addressing the area of resource sensitivity. The prescriptions should, where appropriate, include, but not be limited to, plans for road abandonment, orphaned roads, and road maintenance and plans for applying prescriptions to recognized land features identified in the WAU as areas of resource sensitivity but not fully mapped;

(b) Each set of prescriptions shall provide for an option for an alternate plan under WAC 222-12-040, which the applicant shows meets or exceeds the protection provided by the other prescriptions approved for a given area of resource sensitivity; and

(c) The regulation of forest practices and cumulative effects under this chapter shall not require mitigation for activities or events not regulated under chapter 76.09 RCW. Any hazardous condition subject to forest practices identified in a watershed analysis requiring corrective action shall be referred to the department for consideration under RCW 76.09.300 et seq.

.*(4) The field managers' team shall submit the recommended prescriptions to the department ((within 30 days of the submission to the department of the level 2 assessment under WAC 222-22-060 or within 21 days of the submission to the department of the level 1 assessment under WAC 222-22-050)). If the field managers' team cannot reach consensus recommendations within 30 days the prescriptions and any alternatives will be forwarded to the department. The department will then have 30 days to develop the prescriptions.

[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-22-070, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-22-070, filed 7/2/92, effective 8/2/92.]

NEW SECTION

WAC 222-22-075  Monitoring. To assure that prescriptions will be effective, a monitoring plan shall be developed to identify whether the prescriptions are effectively minimizing, preventing or avoiding, as set forth in table 1 in WAC 222-22-050 (2)(d), the likelihood of adverse change and deliverability that has the potential to cause a material, adverse effect to resource characteristics. The information collected in this plan will be used to evaluate the watershed analysis under WAC 222-22-090.

[]

NEW SECTION

WAC 222-22-076  Restoration. As prescriptions are developed, restoration opportunities will also be identified and used to develop actions that can be prescribed for short-term issues (i.e., such as large woody debris placement to provide short-term function until recruitable wood is available).

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AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-22-090  Use and review of watershed analysis. (1) Where a watershed analysis has been completed for a WAU under this chapter:

(a) Any landowner within the WAU may apply for five year permit to carry out forest practices according to the watershed analysis prescriptions. Upon completion of the five-year review of the assessment and prescriptions under WAC 222-22-090 (4)(a), landowner may apply for a renewal of the permit.

(b) ((Forest)) Nonfive year forest practices applications and notifications submitted to the department shall indicate whether an area of resource sensitivity will be affected and, if so, which prescription the operator, timber owner, or forest land owner shall use in conducting the forest practice in the area of resource sensitivity;

(((b))) (c) The department shall assist operators, timber owners, and forest land owners in obtaining governmental permits required for the prescription (see WAC 222-50-020 and 222-50-030);

(((c))) (d) The department shall confirm that the prescription selected under (a) of this subsection was one of the prescriptions approved for the area of resource sensitivity under WAC 222-22-080 and shall require the use of the prescription; and

(((d))) (e) The department shall not further condition forest practice applications and notifications in an area of resource sensitivity in a WAU where the applicant will use a prescription contained in the watershed analysis nor shall the department further condition forest practice applications and notifications outside an area of resource sensitivity in a WAU, except for reasons other than the watershed processes and fish, water, and capital improvements of the state or its political subdivisions analyzed in the watershed analysis in the WAU, and except to correct mapping errors, misidentification of soils, landforms, vegetation, or stream features, or other similar factual errors.

.*(2) Pending completion of a watershed analysis for a WAU, the department shall process forest practices notifications and applications in accordance with the other chapters of this title, except that applications and notifications received for forest practices on a WAU after the date notice is mailed under WAC 222-22-040(4) commencing a watershed analysis on the WAU shall be conditioned to require compliance with interim, draft, and final prescriptions, as available. Processing and approval of applications and notifications shall not be delayed by reason of review, approval, or appeal of a watershed analysis.

.*(3) The board encourages cooperative and voluntary monitoring. Evaluation of resource conditions may be conducted by qualified specialists, analysts, and field managers as determined under WAC 222-22-030. Subsequent watershed analysis and management strategies in response to areas where recovery is not occurring shall be conducted in accordance with this chapter.

.*(4) Where the condition of resource characteristics in a WAU are fair or poor, the department shall evaluate the effectiveness of the prescriptions applied under this chapter to the WAU in providing for the protection and recovery of the resource characteristic. If the department finds that the prescriptions are not providing for such protection and recovery over a period of 3 years, the department shall repeat the watershed analysis in the WAU. Aside from the foregoing, once a watershed analysis is completed on a WAU, it shall be revised in whole or in part upon the earliest of the following to occur:

(a) Five years after the date the watershed analysis is final, if necessary;

(b) The occurrence of a natural disaster having a material adverse effect on the resource characteristics of the WAU;

(c) Deterioration in the condition of a resource characteristic in the WAU measured over a 12-month period or no improvement in a resource characteristic in fair or poor condition in the WAU measured over a 12-month period unless the department determines, in cooperation with the departments of ecology, fish and wildlife, affected Indian tribes, forest land owners, and the public, that a longer period is reasonably necessary to allow the prescriptions selected to produce improvement; or

(d) The request of an owner of forest land in the WAU which wishes to conduct a watershed analysis at its own expense.

Revision of an approved watershed analysis shall be conducted in accordance with the processes, methods, and standards set forth in this chapter, except that the revised watershed analysis shall be conducted only on the areas affected in the case of revisions under (b) or (c) of this subsection, and may be conducted on areas smaller than the entire WAU in the case of revisions under (a) and (d) of this subsection. The areas on which the watershed analysis revision is to be conducted shall be determined by the department and clearly delineated on a map before beginning the assessment revision. Forest practices shall be conditioned under the current watershed analysis pending the completion of any revisions.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-22-090, filed 12/3/97, effective 1/3/98. Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-22-090, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-22-090, filed 7/2/92, effective 8/2/92.]

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

WAC 222-24-010  Policy. .*(1) A well designed, located, constructed, and maintained system of forest roads is essential to forest management and protection of the public resources. Riparian areas contain some of the more productive conditions for growing timber, are heavily used by wildlife and provide essential habitat for fish and wildlife and essential functions in the protection of water quality. Wetland areas serve several significant functions in addition to timber production: Providing fish and wildlife habitat, protecting water quality, moderating and preserving water quantity. Wetlands may also contain unique or rare ecological systems.

.*(2) All road and landing construction within wetlands shall be conducted so that choices are made in the following descending order of preference in order to assure that there is no net loss of wetland functions:

(a) Avoid impacts by selecting the least environmentally damaging landing location, road location and road length; or

(b) Minimize impacts by such things as reducing the subgrade width, fill acreage and spoil areas; or

(c) Restore affected areas by removing temporary fills or road sections upon the completion of the project; or

(d) Reduce or eliminate impacts over time by preserving or maintaining areas; or

(e) Replace affected areas by creating new wetlands or enhancing existing wetlands at a minimum of a 2:1 ratio.

.*(3) An accurate delineation of wetland boundaries shall not be required under this section except where necessary to determine acreage of road or landing construction which fills or drains more than 0.5 acre of a wetland. Landowners are encouraged to voluntarily increase wetland acreage and functions over the long-term.

.*(4) Extra protection is required during road construction and maintenance to protect these resources and timber growing potential. Landowners and fisheries and wildlife managers are encouraged to cooperate to develop road management and abandonment plans. Landowners are further encouraged to cooperate in sharing roads to minimize road mileage and avoid duplicative road construction.

.*(5) This section covers the location, design, construction, maintenance and abandonment of forest roads, bridges, stream crossings, quarries, borrow pits, and disposal sites used for forest road construction and is intended to assist landowners in proper road planning, construction and maintenance so as to protect public resources.

(Note: Other laws and regulations and/or permit requirements may apply. See chapter 222-50 WAC.)

[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-24-010, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-010, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-010, 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), § 222-24-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-24-010, filed 6/16/76.]

AMENDATORY SECTION (Amending WSR 92-15-011, filed 7/2/92, effective 8/2/92)

WAC 222-24-020  Road location and design. The board manual outlines the best management practices for locating and designing a road.

(1) ((Fit the)) Design road systems to the topography so that a minimum of alterations to the natural features will occur.

.*(2) Roads are not to be constructed in bogs.

.*(3) All roads should be outsloped with appropriate surface drainage or insloped with a drainage management plan addressing sedimentation delivery with adequate cross drains, ditches, drivable dips, relief culverts, water bars, diversion ditches, or other such structures demonstrated to be equally effective.

.*(4) Minimize roads along or within narrow canyons, riparian management zones, wetlands and wetland management zones.

(a) ((Except where crossings are necessary, r)) Roads shall not be located within natural drainage channels and riparian management zones when there would be substantial loss or damage to wildlife habitat unless the department has determined that alternatives will cause greater damage to public resources.

(b) Roads shall not be located in wetlands when there would be substantial loss or damage to wetland functions or acreage unless the department has determined that alternatives will cause greater damage to public resources.

(c) Approximate determination of wetland boundaries shall be required for the purpose of avoidance during design and construction of roads. ((Landowners should attempt to minimize road length concurrently with the attempt to avoid wetlands.)) Delineation shall be required to determine the length of road ((constructed within a)) affecting wetland function in order to determine acreage when replacement by substitution or enhancement of a wetland is required. The requirement for accurate delineation shall be limited to the area of the wetland proposed to be filled.

((.*(3) Minimize the number of stream crossings.))

((.*(4) Whenever practical, cross streams at right angles to the main channel.))

.*(5) Permanent stream crossing shall be minimized based on sub-basin road sediment budgets. Stream crossings shall minimize alterations to natural features. Culverts located in typed waters shall be designed to prevent sediment delivery.

(6) Avoid duplicative roads by keeping the total amount of construction to a minimum. Use existing roads whenever practical and avoid isolating patches of timber which, when removed, may require unnecessary road construction.

(7) Avoid grade dips on approaches over bridges and culverts. If grade dips are necessary, minimize the impact by outsloping or constructing maintainable drainage dips to route water off the road surface and onto the forest floor.

((.*(6))) .*(8) ((Where feasible,)) ((d)) Do not locate roads on ((excessively)) steep or unstable slopes or ((known)) slide prone areas ((as determined by the department)). The department shall determine whether slopes are unstable using available soils information, or from evidence of geologically recent slumps or slides ((or where the natural slope exceeds the angle of repose for the particular soil types present)), or by the presence of potentially unstable landforms such as bedrock hollows, convergent headwalls, inner gorges, or other steep slopes, or where springs or seeps may indicate unstable conditions are present in or above the construction site. Location of roads in such areas may be considered Class IV-Special forest practices under WAC 222-16-050(d).

((Essential r)) Road construction ((will be accomplished)) may be permitted by end hauling, over hauling, or other special road construction techniques unless the department determines there is potential for damage to public resources under WAC 222-16-050 (1)(e).

(9) Design or construct cut and fill slopes to the normal angle of repose for the materials involved, or at a lesser angle whenever practical.

(10) Relief drainage structures installed on forest roads shall meet the following minimum specifications:

(a) Outslope with armored drivable water dips to control surface runoff.

(b) Insloped roads and ditches require relief drainage structures --

(i) Culverts will be at least 18 inches in diameter or equivalent with relief devices not to exceed 300 feet spacing unless otherwise stated in a drainage management plan.

(ii) Be installed sloping toward the outside edge of the road at a minimum gradient of 3 percent.

(iii) Settlement ponds and relief drainage structures are required within 80 feet of typed waters with the potential road sediment delivery.

(11) Ditch diversion. Where roadside ditches slope toward a Type S, F, or N water, or Type A or B Wetland for more than 300 feet and otherwise would discharge into the stream or wetland, divert the ditchwater onto the forest floor by relief culvert or other means at the first practical point.

(12) Filling or draining more than 0.5 acre of a wetland requires replacement by substitution or enhancement of the lost wetland functions at a minimum of a 2:1 ratio. See the Board Manual. Replacement or substitution should be of the same type and in the same general location.

.*(13) Road surface sediments shall be minimized by utilizing restricted haul periods or alternative drainage management strategies. A haul route drainage management plan minimizing sediment is required for partial or nonrestricted haul.

[Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-020, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-020, 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), § 222-24-020, filed 8/3/82, effective 10/1/82; Order 263, § 222-24-020, filed 6/16/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-24-030  Road construction. The board manual contains best management practices for constructing roads.

(1) Right of way timber. Merchantable right of way timber shall be removed or decked in suitable locations where the decks will not be covered by fill material or act as support for the fill or embankment.

.*(2) Debris burial. (((a))) In permanent road construction, do not bury:

(((i))) (a) Loose stumps, logs or chunks containing more than 5 cubic feet in the load-bearing portion of the road, except as puncheon across wetlands or for culvert protection.

(((ii))) (b) Any significant amount of organic debris within the top 2 feet of the load-bearing portion of the road, except as puncheon across wetlands or for culvert protection.

(((iii))) (c) Excessive accumulation of debris or slash in any part of the load-bearing portion of the road fill, except as puncheon across wetlands or for culvert protection.

(((b) In the cases where temporary roads are being constructed across known areas of unstable soils and where possible construction failure would directly impact waters, the requirements in (a), (i), (ii) and (iii) of this subsection shall apply. A temporary road is a roadway which has been opened for the purpose of the forest practice operation in question, and thereafter will be an inactive or abandoned road.))

(3) Compact fills. During road construction, fills or embankments shall be built up by layering. Each layer shall be compacted by operating the tractor or other construction equipment over the entire surface of the layer. Chemical compacting agents may be used in accordance with WAC 222-38-020.

.*(4) Stabilize soils. ((When soil, exposed by road construction, appears to be unstable or erodible and is so located that slides, slips, slumps, or sediment may reasonably be expected to enter Type 1, 2, 3 or 4 Water and thereby cause damage to a public resource, then such exposed soil areas)) Soils exposed by road construction shall be seeded with grass, clover, or other ground cover, or be treated by erosion control measures ((acceptable to the department)) in the first growing season. Avoid introduction of nonnative plant species, as listed in the board manual, to wetlands and wetland management zones.

.*(5) Channel clearance. Clear stream channels and ditches of all debris and slash generated during operations prior to the removal of equipment from the vicinity, or the winter season, whichever is first. Refer to the board manual regarding guidelines for removal of debris and slash from channels and ditches.

.*(6) Drainage.

(a) All required outsloping ditches, ((culverts)), stream crossings, cross drains, drainage dips, water bars, and diversion ditches shall be installed concurrently with the construction of the roadway.

(b) Uncompleted road construction to be left over the winter season or other extended periods of time shall be drained by outsloping or cross draining. Water bars and/or dispersion ditches may also be used to minimize eroding of the construction area and stream siltation. Water movement within wetlands must be maintained.

.*(7) Moisture conditions. Construction shall be accomplished when moisture and soil conditions are not likely to result in excessive erosion and/or soil movement, so as to avoid damage to public resources.

.*(8) End haul/sidecasts. End haul or overhaul construction is required where significant amounts of sidecast material would rest below the ((50)) 100-year flood level of a Type ((1, 2, 3, or 4 Water)) S, F, or N water, within the boundary of a Type A or Type B Wetland or wetland management zones or where the department determines there is a potential for mass soil failure from overloading on unstable slopes or from erosion of side cast material causing damage to the public resources.

.*(9) Waste disposal. When spoil, waste and/or other debris is generated during construction, this material shall be deposited or wasted in suitable areas or locations and be governed by the following:

(a) Spoil or other debris shall be deposited above the 50-year flood level of Type ((1, 2, 3, or 4 Waters)) S, F, or N waters or in other locations so as to prevent damage to public resources. The material shall be stabilized by erosion control measures as necessary to prevent the material from entering the waters.

(b) All spoils shall be located outside of Type A and Type B Wetlands and their wetland management zones. Spoils shall not be located within the boundaries of forested wetlands without written approval of the department and unless a less environmentally damaging location is unavailable. No spoil area greater than 0.5 acre in size shall be allowed within wetlands.

(10) Disturbance avoidance for northern spotted owls. Road construction, operation of heavy equipment and blasting within a SOSEA boundary shall not be allowed within 0.25 mile of a northern spotted owl site center between March 1 and August 31, provided that, this restriction shall not apply if:

(a) The landowner demonstrates that the owls are not actively nesting during the current nesting season; or

(b) The forest practice is operating in compliance with a plan or agreement developed for the protection of the northern spotted owl under WAC 222-16-080 (6)(a), (e), or (f).

(11) Disturbance avoidance for marbled murrelets.

(a) Road construction and operation of heavy equipment shall not be allowed within 0.25 mile of an occupied marbled murrelet site during the daily peak activity periods within the critical nesting season; and

(b) Blasting shall not be allowed within 0.25 mile of an occupied marbled murrelet site during the critical nesting season.

(c) Provided that, these restrictions shall not apply if the forest practice is operating in compliance with a plan or agreement developed for the protection of the marbled murrelet under WAC 222-16-080 (6)(a) or (c).

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-24-030, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-24-030, filed 7/21/97, effective 8/21/97. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-24-030, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 76.09.060, 76.09.040 and chapter 34.05 RCW. 92-23-056, § 222-24-030, filed 11/17/92, effective 12/18/92. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-030, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-030, 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), § 222-24-030, filed 8/3/82, effective 10/1/82; Order 263, § 222-24-030, filed 6/16/76.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 92-15-011, filed 7/2/92, effective 8/2/92)

WAC 222-24-035  Landing location and construction. .*(1) Landing location:

Locate landings to prevent damage to public resources. Avoid excessive excavation and filling. Minimize placement and size of landings within wetlands. Landings shall not be located in Type A or B Wetlands or their wetland management zones.

(2) Landing construction.

(a) Landings requiring sidecast or fill shall be no larger than reasonably necessary for safe operation of the equipment expected to be used.

(b) Where the average general slopes exceed 65 percent, fill material used in construction of landings shall be free from loose stumps and excessive accumulations of slash and shall be mechanically compacted where necessary and practical in layers by tractor to prevent soil erosion and mass soil movement. Chemical compacting agents may be used in accordance with WAC 222-38-020.

.*(c) Truck roads, skid trails, and fire trails shall be outsloped or cross drained uphill of landings and the water diverted onto the forest floor away from the toe of any landing fill.

.*(d) Landings shall be sloped to minimize accumulation of water on the landing.

.*(e) Excavation material shall not be sidecast where there is high potential for material to enter Type A or B Wetlands or wetland management zones or below the ((ordinary high-water mark)) bankfull width of any stream or the ((50)) 100-year flood level of Type ((1, 2, 3, or 4 Water)) S, F, or N water.

.*(f) All spoils shall be located outside of Type A and Type B Wetlands and their wetland management zones. Spoils shall not be located within the boundaries of forested wetlands without written approval of the department and unless a less environmentally damaging location is unavailable. No spoil area greater than 0.5 acre in size shall be allowed within wetlands.

[Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-035, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-035, 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), § 222-24-035, filed 8/3/82, effective 10/1/82.]

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-24-040  Water crossing structures. .*(1) ((Bridge construction.)) All typed waters.

(a) Bridges are required for new or constructed crossings of any ((Type 1 or 2 Waters)) waters regularly used for recreational boating.

(b) ((Permanent bridges shall not constrict clearly defined channels and shall be designed to pass the 50-year flood level or the road shall be constructed to provide erosion protection from the 50-year flood waters which exceed the water-carrying capacity of the drainage structure.

(c))) One end of each new or reconstructed permanent log or wood bridge shall be tied or firmly anchored if any of the bridge structure is within 10 vertical feet of the ((50)) 100-year flood level.

(((d) Excavation for bridges, placement of sills or abutments, and the placement of stringers or girders shall be accomplished from outside the ordinary high-water mark of all waters, except when such operations are authorized by a hydraulic project approval.

(e) Earth embankments constructed for use as bridge approaches shall be protected from erosion by high water. Some examples of protection are: Planted or seeded ground cover, bulkheads, rock riprap, or retaining walls.

(f) When earthen materials are used for bridge surfacing, curbs of sufficient size shall be installed to be above the surface material and prevent such surface material from falling into the stream bed.))

.*(2) Type S or F waters: In addition to applicable general provisions above, installation, maintenance, and removal of water crossing structures in or across the bankfull width of Type S and F waters are subject to hydraulic code rules WAC 222-110 and require a hydraulic project approval issued by the department of fish and wildlife.

.*(3) Type N waters - bridges: In addition to applicable general provisions above, installation, maintenance, and removal of permanent bridges in or across the bankfull width of Type N waters are subject to the following provisions:

(a) Permanent bridges shall not constrict clearly defined channels and shall be designed to pass the 100-year flood, or the bridge, associated embankments and fills, and all potentially inundated areas, shall be provided sufficient erosion protection to withstand the 100-year flood.

(b) Excavation for and placement of the bridge foundation and superstructure shall be located and accomplished from outside the bankfull width. This requirement may be waived if it can be demonstrated that such activities may be conducted in such a manner as to prevent damage to public resources.

(c) Alteration or disturbance of the stream bank or bank vegetation shall be limited to that necessary to construct the project. All disturbed areas must be stabilized and restored according to the recommended schedule and procedures found in the board manual. This requirement may be modified or waived by the department if precluded by engineering or safety factors.

(d) Earthen embankments constructed for use as bridge approaches shall be provided sufficient erosion protection to withstand the 100-year flood.

(e) When earthen materials are used for bridge surfacing, curbs of sufficient size shall be installed to be above the surface material and prevent such surface material from falling into the stream bed.

.*(4) Type N waters-culverts: In addition to applicable general provisions above, installation, maintenance, and removal of permanent culverts in or across the bankfull width of Type N waters are subject to the following provisions:

((Culvert installation:))

(a) All permanent culverts ((installed in forest roads shall be of a size that is adequate to carry)) shall be designed to pass the ((50)) 100-year flood. ((or the road shall be constructed to provide erosion protection from the 50-year flood waters which exceed the water-carrying capacity of the drainage structure.)) The culvert, associated embankments and fills, and all potentially inundated areas shall provide sufficient erosion protection to withstand the 100-year flood. Refer to "Recommended culvert sizes" in the forest practices board manual for the size of permanent culverts recommended for use in forest roads. If the department determines that because of unstable slopes the culvert size shown on that table is inadequate to protect public resources, it may require culvert sizes in accordance with the nomograph (chart) contained in the forest practices board manual or with other generally accepted engineering principles.

(((a))) (b) No permanent culverts shall be installed that are smaller than:

(i) 24 inches in diameter ((or the equivalent for anadromous fish streams or wetlands where anadromous fish are present)) for Type N perennial streams.

(ii) 18 inches or the equivalent for ((resident game fish streams)) Type N seasonal streams.

(((iii) 18 inches or the equivalent for all other water or wetland crossings in western Washington.

(iv) 15 inches or the equivalent for all other water or wetland crossings in eastern Washington.))

(((b))) (c) The alignment and slope of the culvert shall parallel the natural flow of the stream whenever possible.

(((c) When fish life is present, construct the bottom of the culvert at or below the natural stream bed at the inlet and outlet.

(d) Terminate culverts on materials that will not readily erode, such as riprap, the original stream bed (if stable), or other suitable materials.

(e) If water is diverted from its natural channel, return this water to its natural stream bed via culvert, flume, spillway, or the equivalent.

(f) When flumes, downspouts, downfall culverts, etc., are used to protect fill slopes or to return water to its natural courses, the discharge point shall be protected from erosion by: (i) Reducing the velocity of the water, (ii) use of rock spillways, (iii) riprap, (iv) splash plates, or (v) other methods or structures demonstrated to be equally effective.))

(d) Culverts shall be designed and installed so that they will not cause scouring of the stream bed and erosion of the banks in the vicinity of the project.

(e) During installation of the culvert, all streamflow shall be diverted using a bypass flume or culvert, or by pumping the streamflow around the work area. This requirement may be waived if it can be demonstrated that less siltation and turbidity would be produced by installing the culvert in the flowing stream.

(f) Fill associated with culvert installation shall be provided sufficient erosion protection to withstand a 100-year flood.

(g) Alteration or disturbance of the stream bank or bank vegetation shall be limited to that necessary to construct the project. All disturbed areas must be stabilized and restored according to the recommended schedule and procedures found in the board manual. This requirement may be modified or waived by the department if precluded by engineering or safety factors.

(((g))) (h) Stream beds shall be cleared for a distance of 50 feet upstream from the culvert inlet of such slash or debris that reasonably may be expected to plug the culvert.

(((h))) (i) The entrance of all culverts should have adequate catch basins and headwalls to minimize the possibility of erosion or fill failure.

((.*(3) Culverts in anadromous fish streams. In addition to the requirements of subsection (2) of this section, in streams used by anadromous fish:

(a) Culverts shall be either open bottomed or have the bottom covered with gravel and installed at least 6 inches below the natural stream bed at the inlet and outlet.

(b) Closed bottom culverts shall not slope more than 1/2 percent; except as provided in (e) of this subsection; open bottom culverts shall not slope more than the natural slope of the stream bed.

(c) Where multiple culverts are used, one culvert shall be at least 6 inches lower than the other(s).

(d) Culverts shall be set to retain normal stream water depth throughout the culvert length. A downstream control may be required to create pooled water back into the culvert and to insure downstream stream bed stability.

(e) Closed bottom culverts, set at existing stream gradients between 1/2 percent and 3 percent slope shall be designed with baffles for water velocity control, or have an approved designed fishway.

(f) The department, after consultation with the department of fish and wildlife, shall impose any necessary limitations on the time of year in which such culverts may be installed to prevent interference with migration or spawning of anadromous fish.

(g) Any of the requirements in (a) through (f) of this subsection may be superseded by a hydraulic project approval.))

((.*(4))) .*(5) Type N waters - Temporary water crossings.

(a) Temporary bridges and culverts, ((adequate to carry the highest anticipated flow in lieu of carrying the 50-year flood,)) may be used:

(i) In the westside region if installed after June ((1)) 15 and removed by September 30 of the same year.

(ii) In the eastside region if installed after the spring runoff and removed prior to the snow buildup which could feed a heavy runoff.

(iii) At other times, when the department and applicant can agree to specific dates of installation and removal.

(b) Temporary bridges and culverts shall be designed to pass the flood expected to occur once in 100 years during the season of installation.

(c) Alteration or disturbance of the stream bank or bank vegetation shall be limited to that necessary to construct the project. All disturbed areas must be stabilized and restored according to the recommended schedule and procedures found in the Board Manual. This requirement may be modified or waived by the department if precluded by engineering or safety factors.

(d) During installation of a temporary culvert, all streamflow shall be diverted using a bypass flume or culvert, or by pumping the streamflow around the work area. This requirement may be waived if it can be demonstrated that less siltation and turbidity would be produced by installing the culvert in the flowing stream.

(e) Temporary bridges and culverts shall be promptly removed upon completion of use, and the approaches to the crossing shall be water barred and stabilized at the time of the crossing removal.

(((c))) (f) Temporary wetland crossings shall be abandoned and restored based on a written plan approved by the department prior to construction.

(((5))) .*(6) Fords. Properly prepared and maintained fords may be used in Type N waters during periods of low water providing a hydraulic permit is acquired.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-24-040, filed 12/3/97, effective 1/3/98. Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-24-040, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.060, 76.09.040 and chapter 34.05 RCW. 92-23-056, § 222-24-040, filed 11/17/92, effective 12/18/92. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-040, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-040, 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), § 222-24-040, filed 8/3/82, effective 10/1/82; Order 263, § 222-24-040, filed 6/16/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-24-050  Road maintenance. .*(1) Road maintenance, drainage management, and abandonment plan.

(a) The landowner when notified by the department shall submit a plan for road maintenance, drainage management, and/or abandonment for those drainages or road systems the department determines based on physical evidence to have a potential to damage public resources. Once notified the landowner must within 90 days submit to the department for review and approval, a plan for those drainages or road systems within the identified area. The plan must pay particular attention to those road segments that block fish passage or have the potential to deliver water or sediment to any typed water. The plan is subject to annual review and shall include:

(i) Ownership maps showing the road or road system;

(ii) Road status, whether active, inactive, orphan, abandoned or planned for abandonment;

(iii) Maintenance schedule ((and priorities for the year)) including storm maintenance, drainage management strategies and priorities which will consider the road proximity to water, and roads delivering to typed waters; and

(iv) Plan for further maintenance and reconstruction beyond the current year for ((repair of extensive damage)) bringing roads up to standards, preventing sedimentation, removing fish passage blockages and reducing hydrologic impacts. Restoring fish passage, reducing sediment, and reducing hydrologic impacts will be priorities considered in the maintenance schedule.

.*(2)(a) All landowners with 500 acres or more of ownership in areas not currently covered by an approved watershed analysis (see chapter 222-22 WAC), road maintenance plan, or other agreement where an acceptable road maintenance plan is part of the agreement, must submit a road maintenance plan for all roads in their ownership within 5 years of the effective date of this rule. The plan must meet the requirements outlined above in subsection (1) of this section. The plan must be submitted to the department with at least 20% of a landowner's ownership each year. Landowners will prioritize which plans will be submitted first based on whether a road system or drainage contains a listed water body or species; sensitive geology/soils or history of failure; level of use or restoration projects coincide in the same drainage; in this order of preference.

(b) Landowners hauling timber on active haul routes not covered under a department approved road maintenance and abandonment plan, an approved watershed analysis or other agreement in which a road maintenance and abandonment plan is part of the agreement must submit a drainage management plan with each application.

(c) ((The department will review the plan annually with the landowner to determine whether it will be effective and is being implemented.)) Landowners with less than 500 acres within the areas in a watershed administrative unit that has not undergone a watershed analysis under chapter 222-22 WAC must submit a road maintenance and abandonment plan along with the forest practice notification or application for proposed road or harvest activities. The plan must cover their entire ownership.

(((b))) (d) The plan shall be submitted to the department region office on or before June 30, 1988, and each June 30th thereafter unless the department agrees that no further plans are necessary.

(((d))) (e) Such plans shall also be reviewed with the departments of ecology, fish and wildlife, affected Indian tribes, and interested parties, any of whom may request the department to hold an informal conference with the landowner.

(f) The department will review the plan annually with the landowner, departments of ecology, and fish and wildlife, affected Indian tribes and interested parties to determine whether it will be effective and is being implemented.

(g) An approved road maintenance and abandonment plan will be considered a multi-year permit for accomplishing those actions approved in the plan.

(h) Roads that are not in compliance with the approved plan may not be used without department approval.

(note: The road maintenance and abandonment training manual and other materials made available by the department can be used for guidance in developing road maintenance and abandonment plans.)

.*(2) Active roads. An active road is a forest road being actively used for hauling of logs, pulpwood, chips, or other major forest products or rock and other road building materials. To the extent necessary to prevent damage to public resources, the following maintenance shall be conducted on such roads:

(a) ((Culverts)) Outsloping and armored drivable dips shall be maintained.

(b) Stream crossings, cross drains and ditches shall be kept functional.

(c) Restricted haul will be required unless a road maintenance and abandonment plan is in place for the haul route.

(((b))) (d) Road surface shall be maintained as necessary to minimize erosion of the surface and the subgrade.

(((c))) (e) During and on completion of operations, road surface shall be crowned, outsloped, or water barred and berms removed from the outside edge except those intentionally constructed for protection of fills.

.*(3) Inactive roads. An inactive road is a forest road on which commercial hauling is discontinued for 1 or more logging seasons, and the forest landowner desires continuation of access for fire control, forest management activities, Christmas tree growing operations, occasional or incidental use for minor forest products harvesting or similar activities on such inactive roads:

(a) Before the first winter rainy season following termination of active use, nonfunctional ditches and culverts shall be cleared, stream crossings and cross drains and the road surface shall be crowned, ((outsloped,)) water barred or otherwise left in a condition not conducive to accelerated erosion or interrupt water movement within wetlands; and

(b) Thereafter, except as provided in (c) of this subsection, the landowner shall outslope and clear culverts or repair ditches ((or culverts which he/she knows or should know to be nonfunctional and causing or)) and cross drains likely to cause material damage to a public resource.

(c) ((The)) If a landowner allow public use, the landowner shall ((not)) be liable for penalties or monetary damages, under the act, for damage occurring from a condition brought about by the public use. ((, unless he/she fails to make repairs as directed by a notice to comply.)) Landowners are encouraged to control road use through gating or other opportunities such as the green dot program.

.*(4) Additional ((culverts/maintenance)) drainage management. If the department determines based on physical evidence that the above maintenance has been or will be inadequate to protect public resources and that additional measures will provide adequate protection it shall require the landowner or operator to either elect to:

(a) ((Install)) Require additional ((or larger culverts or other)) drainage improvements as deemed necessary by the department; or

(b) Agree to an additional road maintenance program. Such improvements in drainage or maintenance may be required only after a field inspection and opportunity for an informal conference.

.*(5) Abandoned roads. An abandoned road is a forest road which the forest landowner has abandoned in accordance with procedures of (a) through (e) of this subsection. Roads are exempt from maintenance only after (e) of this subsection is completed:

(a) Roads are outsloped, water barred, or otherwise left in a condition suitable to control erosion and maintain water movement within wetlands; and

(b) Ditches are left in a suitable condition to reduce erosion; and

(c) The road is blocked so that four wheel highway vehicles can not pass the point of closure at the time of abandonment; and

(d) Bridges, culverts, and fills on all waters are removed, except where the department determines other measures would provide adequate protection to public resources.

(e) The department shall determine whether the road has been abandoned according to procedures of this subsection. If the department determines the road is properly abandoned, it shall within thirty days notify the landowner in writing that the road is officially abandoned.

.*(6) Orphan Roads. A forest road which the forest landowner has not used since 1974 for forest practice activities. Many of these roads are overgrown or closed off but have not satisfied the formal abandonment process in accordance with procedures of (a) through (e) in subsection (5) above. Roads are exempt from maintenance only after (e) of subsection (5) above is completed.

.*(7) Brush control. Chemical control of roadside brush shall not be done where chemicals will directly enter any Type ((1, 2, or 3 or flowing Type 4 or 5 Water)) S, F, or N water or Type A or B Wetlands. Refer to WAC 222-38-020 for additional information.

((.*(7))) .*(8) Road surface treatment.

(a) Apply oil to the road surface only when the temperature is above 55 degrees F and during the season when there is a minimal chance of rain for the next 48 hours. Use of waste oil is subject to RCW 70.95I.060(5).

(b) Water the road surface prior to application of oil to assist in penetration.

(c) Construct a temporary berm along the road shoulder wherever needed to control runoff of the applied chemical.

(d) Take extreme care to avoid excess application of road chemicals. Shut off the flow at all bridges.

(e) When cleaning out chemical storage tanks or the application equipment tanks used for storage and application of road treatment materials, dispose of the rinse water fluids on the road surface or in a place safe from potential contamination of water.

(f) The use of dry road chemicals shall be in compliance with WAC 222-38-020.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-24-050, filed 12/3/97, effective 1/3/98; 93-12-001, § 222-24-050, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-050, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-050, 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), § 222-24-050, filed 8/3/82, effective 10/1/82; Order 263, § 222-24-050, filed 6/16/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 92-15-011, filed 7/2/92, effective 8/2/92)

WAC 222-24-060  Rock quarries, gravel pits, borrow pits, and spoil disposal areas. Not covered by the Surface Mine Reclamation Act of 1971 (chapter 78.44 RCW).

.*(1) Location of pits. Except as approved by the department, rock quarries and gravel pits opened after January 1, 1975 shall be located above the ((50)) 100-year flood level.

.*(2) Location of spoil disposal areas. Except as approved by the department, spoil disposal areas shall be located:

(a) Above the ((50)) 100-year flood level.

(b) Where the final slope after disposal will be no steeper than 1 1/2:1.

(c) Where practical, on areas having low potential timber productivity.

(d) Where the risk of soil erosion and mass soil movement is minimal.

(e) All spoils shall be placed to allow drainage without additional water ponding.

(f) All spoils shall be located outside of Type A and Type B Wetlands and their wetland management zones. Spoils shall not be located within the boundaries of forested wetlands without written approval of the department and unless a less environmentally damaging location is unavailable. No spoil area greater than 0.5 acre in size shall be allowed within wetlands.

.*(3) Pit drainage. During construction and use of rock quarries, gravel pits, or borrow pits, runoff water shall be either diverted onto the forest floor or be passed through one or more settling basins as approved by the department.

(4) Rehabilitation required. All rock quarries, gravel pits, spoil disposal areas and borrow pits used after January 1, 1975 shall be reclaimed within 2 years from the time the rock or gravel source is either exhausted or abandoned.

(5) Rehabilitation standards. Where rehabilitation is required:

(a) Remove all deleterious material that has potential for damaging the public resource, the soil productivity, or that would prevent reforestation of an otherwise plantable area.

(b) Grade slopes to less than the angle of repose unless otherwise approved.

(c) Reforest in accordance with chapter 222-34 WAC to the extent practical.

(d) Seed unreforested exposed erodible soils with grass, clover or other ground cover.

.*(6) Major spoil disposal operations. Where a spoil disposal operation involves more than 1,000 cubic yards of spoils:

(a) The spoils shall be placed to provide drainage onto the forest floor without water ponding within the disposal area;

(b) The site shall be reforested in accordance with chapter 222-34 WAC to the extent practical; and

(c) If significant erosion of the spoils develops, the eroding areas shall be water barred and any unreforested areas shall be matted, mulched, or seeded with grass or ground cover.

[Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-24-060, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-24-060, filed 11/16/87, effective 1/1/88; Order 263, § 222-24-060, filed 6/16/76.]

AMENDATORY SECTION (Amending WSR 92-15-011, filed 7/2/92, effective 8/2/92)

WAC 222-30-010  Policy--Timber harvesting. .*(1) This section covers all removal of timber from forest lands in commercial operations, commercial thinning, salvage of timber, relogging merchantable material left after prior harvests, postharvest cleanup, and clearing of merchantable timber from lands being converted to other uses. It does not cover removal of incidental vegetation or removal of firewood for personal use. To the extent practical the department shall coordinate the activities on a multiple disciplinary planning approach. The riparian management zone requirements specified in this section are designed to provide protection for water quality and fisheries and wildlife habitat through ensuring present and future supplies of large organic debris for streams, snags, canopy cover, and a multistoried diverse forest adjacent to Type ((1, 2 and 3 Waters)) S and N waters.

.*(2) Wetland areas serve several significant functions in addition to timber production: Providing fish and wildlife habitat, protecting water quality, moderating and preserving water quantity. Wetlands may also contain unique or rare ecological systems. The wetland management zone and wetland requirements specified in this section are designed to protect these wetland functions when measured over the length of a harvest rotation, although some of the functions may be reduced until the midpoint of the timber rotation cycle. Landowners are encouraged to voluntarily increase wetland acreage and functions over the long-term.

.*(3) Riparian management zones (RMZ). RMZs are designed to be fully functional by providing: Stream bank stability and sediment control, large woody debris and shade, and windthrow protection and favorable microclimate. RMZs shall be measured horizontally from the bankfull width on each side of Type S, F, and N waters, as defined in WAC 222-16-030, or from the outer edge of the channel migration zone, whichever is greater.

(Note: Other laws or regulations and/or permit requirements may apply. See chapter 222-50 WAC.)

[Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-30-010, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-30-010, filed 9/21/88, effective 11/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-30-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-30-010, filed 6/16/76.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/31/97 [12/3/97], effective 1/3/98)

WAC 222-30-020  Harvest unit planning and design. (1) Logging system. The logging system should be appropriate for the terrain, soils, and timber type so yarding or skidding can be economically accomplished in compliance with these ((regulations)) rules.

.*(2) Landing locations. Locate landings to prevent damage to public resources. Avoid excessive excavation and filling.

.*(3) Western Washington riparian management zones shall include:

(a) For Type S, F, and N waters, wetlands adjacent to the stream. When the RMZ overlaps a Type A or B wetland or a wetland management zone, the requirement which best protects public resources shall apply.

(b) For Type S and F perennial and seasonal waters:

(i) A 100 foot wide no-harvest and no-ground-based-yarding-equipment zone or

(ii) The applicant may propose an alternate plan for harvest within the 100 foot zone provided that a 30 foot-wide no-harvest and no-ground-based-equipment zone is provided and that the plan is predicated on improving riparian function. The plan must be agreed to by the departments of natural resources, fish and wildlife and ecology, and

(iii) An additional 70 foot wide zone or a distance equal to the site potential tree height (SPTH), whichever is greater, that includes an average of

Option 1 [10 trees per acre]

or

Option 2 [40 trees per acre].

(c) For Type N perennial and seasonal waters:

Option 1

[(i) A two thirds SPTH no-harvest and no-ground-based-yarding-equipment zone on type N perennial streams, and one-half SPTH no-harvest and no-ground-based-yarding-equipment zone on Type N seasonal streams.]

or

Option 2

[(i) A 30 foot wide no-ground-based-yarding-equipment zone

and

(ii) Protection of the following sensitive sites:

(A) A 50 foot wide no-harvest and no-ground-based-yarding-equipment zone for 500 feet directly upstream from any perennial Type N water above a Type S or F water and

(B) A 50 foot wide no-harvest and no-ground-based-equipment radius measured from the junction of two perennial Type N waters, and

(C) At the initiation point of perennial flow on a Type N water;

(D) A 50 foot wide no-harvest and no-ground-based equipment zone for a perennial seep or spring as defined in WAC 222-16-030, within 100 feet of a perennial Type N water;

(E) A no-harvest and no-ground-based-equipment zone for landslide-prone headwalls and inner gorges as defined in WAC 222-16-010; and

(F) A no-harvest and no-ground-based-equipment zone for a channel disturbance zone as defined in WAC 222-16-010.

(G) Tailed frog habitat defined as channel gradients greater than 20% with granitic or basaltic geology; and

(iii) For Type N perennial waters, shade from commercial tree species is required as follows:

(A) The stream length protected within sensitive sites (refer to (c)(ii) above) shall equal at least 50% of the total length of perennial Type N waters within the boundaries of each unit of the application or notification.

(B) If 50% is not met as required in subsection (i) above, then additional trees shall be left in any of the following areas until at least 50% is achieved:

(I) Channel gradients less than 20% (low gradient areas);

(II) Hyporheic areas defined in WAC 222-16-010;

(III) Starting at the most downstream boundary of the unit and working upstream.]

((.*(3) Western Washington riparian management zones. These zones shall be measured horizontally from the ordinary high-water mark of Type 1, 2 or 3 Water and extend to the line where vegetation changes from wetland to upland plant community, or the line required to leave sufficient shade as required by WAC 222-30-040, whichever is greater, but shall not be less than 25 feet in width nor more than the maximum widths described in (c) of this subsection, provided that the riparian management zone width shall be expanded as necessary to include wetlands or ponds adjacent to the stream. When the riparian management zone overlaps a Type A or B Wetland or a wetland management zone, the requirement which best protects public resources shall apply.

(a) Harvest units shall be designed so that felling, bucking, yarding or skidding, and reforestation can be accomplished in accordance with these regulations, including those regulations relating to stream bank integrity and shade requirements to maintain stream temperature. Where the need for additional actions or restrictions adjacent to waters not covered by the following become evident, WAC 222-12-050 and 222-12-060 may apply.

(b) When requested in writing by the applicant, the department shall assist in preparation of an alternate plan for the riparian management zone.

(c) Within the riparian management zone, there shall be trees left for wildlife and fisheries habitat as provided for in the chart below. Fifty percent or more of the trees shall be live and undamaged on completion of the harvest. The leave trees shall be randomly distributed where feasible; some clumping is allowed to accommodate operational considerations. The number, size, species and ratio of leave trees, deciduous to conifer, is specified by the bed material and average width of the water type within the harvest unit. Trees left according to (d) of this subsection may be included in the number of required leave trees in this subsection.

"Or next largest available" requires that the next largest trees to those specified in the rule be left standing when those available are smaller than the sizes specified. Ponds or lakes which are Type 1, 2 or 3 Waters shall have the same leave tree requirements as boulder/bedrock streams.

(d) For wildlife habitat within the riparian management zone, leave an average of 5 undisturbed and uncut wildlife trees per acre at the ratio of 1 deciduous tree to 1 conifer tree equal in size to the largest existing trees of those species within the zone. Where the 1 to 1 ratio is not possible, then substitute either species present. Forty percent or more of the leave trees shall be live and undamaged on completion of harvest. Wildlife trees shall be left in clumps whenever possible.

(e) When 10 percent or more of the harvest unit lies within any combination of a riparian management zone of Type 1, 2 or 3 Waters or a wetland management zone and the harvest unit is a clearcutting of 30 acres or less, leave not less than 50 percent of the trees required in (c) of this subsection.))

.*(4) Eastern Washington riparian management zones shall include:

(a) For Type S, F and N waters, wetlands adjacent to the stream. When the RMZ overlaps a Type A or B wetland or a wetland management zone, the requirement which best protects public resources shall apply.

(b) For Type S and F perennial and seasonal waters:

(i) a 100 foot wide or a distance equal to a site-potential tree height, whichever is greater, no-harvest and no-ground-based-yarding-equipment zone, or

(ii) The applicant may propose an alternate plan for harvest within the 100 foot zone to address forest health salvage and fire prevention, provided that the proposal contains a 30 foot no-harvest and no-ground-based-equipment zone and that the plan is predicated on improving riparian function. The plan must be agreed to by the departments of natural resources, fish and wildlife and ecology.

(c) For Type N perennial and seasonal waters:

Option 1

[(i) A two thirds SPTH no-harvest and no-ground-based-yarding-equipment zone on type N perennial streams, and one-half SPTH no-harvest and no-ground-based-yarding-equipment zone on type N seasonal streams.]

or

Option 2

[(i) A 30 foot wide no-ground-based-yarding-equipment zone and

(ii) Protection of the following sensitive sites:

(A) A 50 foot wide no-harvest and no-ground-based-yarding-equipment zone for 500 feet directly upstream from any perennial Type N water above a Type S or F water and

(B) A 50 foot wide no-harvest and no-ground-based-equipment radius measured from the junction of two perennial Type N waters, and

(C) at the initiation point of perennial flow on a Type N water;

(D) A 50 foot wide no-harvest and no-ground-based equipment zone for a perennial seep or spring as defined in WAC 222-16-030, within 100 feet of a perennial Type N water;

(E) A no-harvest and no-ground-based-equipment zone for landslide-prone headwalls and inner gorges as defined in WAC 222-16-010; and

(F) A no-harvest and no-ground-based-equipment zone for a channel disturbance zone as defined in WAC 222-16-010.

(G) Tailed frog habitat defined as channel gradients greater than 20% with granitic or basaltic geology; and

(iii) For Type N perennial waters, shade from commercial tree species is required as follows:

(A) The stream length protected within sensitive sites (refer to (c)(ii) above) shall equal at least 50% of the total length of perennial Type N waters within the boundaries of each unit of the application or notification.

(B) If 50% is not met as required in subsection (i) above, then additional trees shall be left in any of the following areas until at least 50% is achieved:

(I) Channel gradients less than 20% (low gradient areas);

(II) Hyporheic areas defined in WAC 222-16-010;

(III) Starting at the most downstream boundary of the unit and working upstream.].

((.*(4) Eastern Washington riparian management zones. These zones shall be measured horizontally from the ordinary high-water mark of Type 1, 2 or 3 Waters and extend to the line where vegetation changes from wetland to upland plant community, or to the line required to leave sufficient shade as required by WAC 222-30-040, whichever is greater, but shall not be less than the minimum width nor more than the maximum widths described in (c) of this subsection, provided that the riparian management zone width shall be expanded as necessary to include wetlands or ponds adjacent to the stream. When the riparian management zone overlaps a Type A or B Wetland or a wetland management zone, the requirement which best protects public resources shall apply.

(a) Harvest units shall be designed so that felling, bucking, yarding or skidding, and reforestation can be accomplished in accordance with these regulations, including those regulations relating to stream bank integrity and shade requirements to maintain stream temperature. Where the need for additional actions or restrictions adjacent to waters not covered by the following become evident, WAC 222-12-050 and 222-12-060 may apply.

(b) When requested in writing by the applicant, the department shall assist in preparation of an alternate plan for the riparian management zone.

(c) Within the riparian management zone, there shall be trees left for wildlife and fisheries habitat as provided for below. Fifty percent or more of the trees shall be live and undamaged on completion of the harvest. The leave trees shall be randomly distributed where feasible; some clumping is allowed to accommodate operational considerations.

(i) The width of the riparian management zone shall be based on the adjacent harvest type as defined in WAC 222-16-010 "Partial cutting." When the adjacent unit harvest type is:

Partial cutting - The riparian management zone width shall be a minimum of 30 feet to a maximum of 50 feet on each side of the stream.

Other harvest types - The riparian management zone shall average 50 feet in width on each side of the stream with a minimum width of 30 feet and a maximum of 300 feet on each side of the stream.

(ii) Leave tree requirements within the riparian management zones of Type 1, 2 or 3 Waters:

(A) Leave all trees 12 inches or less in diameter breast height (dbh); and

(B) Leave all wildlife reserve trees within the riparian management zone where operations in the vicinity do not violate the state safety regulations (chapter 296-54 WAC and chapter 49.17 RCW administered by department of labor and industries, safety division); and

(C) Leave 16 live conifer trees/acre between 12 inches dbh and 20 inches dbh distributed by size, as representative of the stand; and

(D) Leave 3 live conifer trees/acre 20 inches dbh or larger and the 2 largest live deciduous trees/acre 16 inches dbh or larger. Where these deciduous trees do not exist, and where 2 wildlife reserve trees/acre 20 inches or larger do not exist, substitute 2 live conifer trees/acre 20 inches dbh or larger. If live conifer trees of 20 inches dbh or larger do not exist within the riparian management zone, then substitute the 5 largest live conifer trees/acre; and

(E) Leave 3 live deciduous trees/acre between 12 inches and 16 inches dbh where they exist.

(iii) Minimum leave tree requirements per acre for Type 1, 2 and 3 Waters. Trees left for (c)(ii) of this subsection shall be included in the minimum counts.

(A) On streams with a boulder/bedrock bed, the minimum leave tree requirements shall be 75 trees/acre 4 inches dbh or larger.

(B) On streams with a gravel/cobble (less than 10 inches diameter) bed, the minimum leave tree requirement shall be 135 trees/acre 4 inches dbh or larger.

(C) On lakes or ponds the minimum leave tree requirement shall be 75 trees/acre 4 inches dbh or larger.

Note: (See the Forest Practices Board Manual for assistance in calculating trees/acre and average RMZ widths.)

(d) When 10 percent or more of the harvest unit lies within any combination of a riparian management zone of Type 1, 2 or 3 Waters or a wetland management zone and either the harvest unit is a clearcutting of 30 acres or less or the harvest unit is a partial cutting of 80 acres or less, leave not less than 50 percent of the trees required in (c) of this subsection. (See WAC 222-16-010 "Partial cutting.")))

((.*(5) Riparian leave tree areas. The department will require trees to be left along Type 4 Water where such practices are necessary to protect public resources. Where such practices are necessary leave at least 25 conifer or deciduous trees, 6 inches in diameter or larger, on each side of every 1000 feet of stream length within 25 feet of the stream. The leave trees may be arranged to accommodate the operation.))

(5) Harvest units. Harvest units shall be designed so that felling, bucking, yarding or skidding can be accomplished in accordance with these rules.

.*(6) Forested wetlands. Within the wetland, unless otherwise approved in writing by the department, harvest methods shall be limited to low impact harvest or cable systems. Where feasible, at least one end of the log shall be suspended during yarding.

(a) When forested wetlands are included within the harvest area, landowners are encouraged to leave a portion (30 to 70%) of the wildlife reserve tree requirement for the harvest area within a wetland. In order to retain undisturbed habitat within forested wetlands, these trees should be left in clumps. Leave tree areas should be clumped adjacent to streams, riparian management zones, or wetland management zones where possible and they exist within forested wetlands. Green recruitment trees should be representative of the size and species found within the wetland. Leave nonmerchantable trees standing where feasible.

(b) If a RMZ or WMZ lies within a forested wetland, the leave tree requirement associated with those areas may be counted toward the percentages in (a) of this subsection.

(c) If the conditions described in (a) and (b) of this subsection are met, the distribution requirements for wildlife reserve trees and green recruitment trees (subsection (11)(e) of this section) are modified as follows: For purposes of distribution, no point within the harvest unit shall be more than 1000 feet from a wildlife reserve tree and green recruitment tree retention area.

(d) Approximate determination of the boundaries of forested wetlands greater than 5 acres shall be required. Approximate boundaries and areas shall be deemed to be sufficient for harvest operations.

(e) The department shall consult with the department of fish and wildlife and affected Indian tribes about site specific impacts of forest practices on wetland-sensitive species in forested wetlands.

.*(7) Wetland management zones (WMZ). These zones shall apply to Type A and B Wetlands, as indicated in (a) of this subsection, and shall be measured horizontally from the wetland edge or the point where the nonforested wetland becomes a forested wetland, as determined by the method described in the board manual, and shall be of an average width as described in (a) of this subsection. These zones shall not be less than the minimum nor more than the maximum widths described in (a) of this subsection. When these zones overlap a riparian management zone the requirement which best protects public resources shall apply.

.*(a) Wetland management zones (WMZ) shall have variable widths based on the size of the wetland and the wetland type, described as follows:

(b) Within the WMZ, leave a total of 75 trees per acre of WMZ greater than 6 inches dbh in Western Washington and greater than 4 inches dbh in Eastern Washington, 25 of which shall be greater than 12 inches dbh including 5 trees greater than 20 inches dbh, where they exist. Leave trees shall be representative of the species found within the WMZ.

(c) Retain wildlife reserve trees where feasible. Type 1 and 3 wildlife reserve trees may be counted among, and need not exceed, the trees required in (b) of this subsection. Leave all cull logs on site.

(d) Partial-cutting or removal of groups of trees is acceptable within the WMZ. The maximum width of openings created by harvesting within the WMZ shall not exceed 100 feet as measured parallel to the wetland edge. Openings within WMZs shall be no closer than 200 feet. Landowners are encouraged to concentrate leave trees within the WMZ to the wetland edge.

.*(e) Tractors, wheeled skidders, or other ground based harvesting systems shall not be used within the minimum WMZ width without written approval of the department.

.*(f) When 10% or more of a harvest unit lies within any combination of a wetland management zone or a riparian management zone of Type 1, 2, or 3 Waters and either the harvest unit is a clearcut of 30 acres or less or the harvest unit is a partial cut of 80 acres or less, leave not less than 50% of the trees required in (b) of this subsection.

.*(8) Type A or B Wetlands. Within the boundaries of Type A or B Wetlands the following shall apply:

(a) Individual trees or forested wetland areas less than 0.5 acre in size may occur. These trees have a high habitat value to the nonforested wetland. Leave individual trees or forested wetlands less than 0.5 acre. These trees may be counted toward the WMZ requirements.

(b) Harvest of upland areas or forested wetlands which are surrounded by Type A or B Wetlands must be conducted in accordance with a plan, approved in writing by the department.

(c) No timber shall be felled into or cable yarded across Type A or B Wetlands without written approval of the department.

(d) Harvest shall not be allowed within a Type A Wetland which meets the definition of a bog.

(9) Future productivity. Harvesting shall leave the land in a condition conducive to future timber production except:

(a) To the degree required for riparian management zones; or

(b) Where the lands are being converted to another use or classified urban lands as specified in WAC 222-34-050.

(10) Wildlife habitat. This subsection is designed to encourage timber harvest practices that would protect wildlife habitats, provided, that such action shall not unreasonably restrict landowners action without compensation.

(a) The applicant should make every reasonable effort to cooperate with the department of fish and wildlife to identify critical wildlife habitats (state) as defined by the board. Where these habitats are known to the applicant, they shall be identified in the application or notification.

(b) Harvesting methods and patterns in established big game winter ranges should be designed to insure adequate access routes and escape cover where practical.

(i) Where practical, cutting units should be designed to

conform with topographical features.

(ii) Where practical on established big game winter ranges, cutting units should be dispersed over the area to provide cover, access for wildlife, and to increase edge effect.

(11) Wildlife reserve tree management. In areas where leaving wildlife reserve trees under this section will not create a significant fire hazard, or significant hazard to overhead power lines and operations that are proposed in the vicinity of wildlife reserve trees will not create a significant safety or residential hazard nor conflict with achieving conformance with the limitation of or performance with the provisions of chapter 76.04 RCW (snag falling law) and chapter 49.17 RCW (safety), wildlife reserve trees will be left to protect habitat for cavity nesting wildlife in accordance with the following:

(a) In Western Washington, for each acre harvested 3 wildlife reserve trees, 2 green recruitment trees, and 2 down logs shall be left. In Eastern Washington for each acre harvested 2 wildlife reserve trees, 2 green recruitment trees, and 2 down logs shall be left. Type 1 wildlife reserve trees may be counted, at the landowner's option, either as a wildlife reserve tree or as a green recruitment tree. If adequate wildlife reserve trees are not available, no additional green recruitment trees will be required as substitutes. Landowners shall not under any circumstances be required to leave more than 2 green recruitment trees per acre for the purpose of wildlife reserve tree recruitment, or be required to leave Type 3 or 4 wildlife reserve trees.

(b) In Western Washington, only those wildlife reserve trees 10 or more feet in height and 12 or more inches dbh shall be counted toward wildlife reserve tree retention requirements. In Eastern Washington, only those wildlife reserve trees 10 or more feet in height and 10 or more inches dbh shall be counted toward wildlife reserve tree retention requirements. Green recruitment trees, 10 or more inches dbh and 30 or more feet in height and with at least 1/3 of their height in live crown, left standing after harvest may be counted toward green recruitment tree requirements. Green recruitment trees and/or wildlife reserve trees left to meet other requirements of the rules or those left voluntarily by the landowner shall be counted toward satisfying the requirements of this section. Large, live defective trees with broken tops, cavities, and other severe defects are preferred as green recruitment trees. Only down logs with a small end diameter greater than or equal to 12 inches and a length greater than or equal to 20 feet or equivalent volume shall be counted under (a) of this subsection. Large cull logs are preferred as down logs.

(c) In the areas where wildlife reserve trees are left, the largest diameter wildlife reserve trees shall be retained to meet the specific needs of cavity nesters. Where the opportunity exists, larger trees with numerous cavities should be retained and count as recruitment trees.

(d) In order to facilitate safe and efficient harvesting operations, wildlife reserve trees and recruitment trees may be left in clumps. For purposes of distribution, no point within the harvest unit shall be more than 800 feet from a wildlife reserve tree or green recruitment tree retention area. Subject to this distribution requirement, the location of these retention areas and the selection of recruitment trees shall be at the landowner's discretion. Closer spacing of retention areas through voluntary action of the landowner is encouraged. Wildlife reserve tree and green recruitment tree retention areas may include, but are not limited to, riparian management zones, riparian leave tree areas, other regulatory leave areas, or voluntary leave areas that contain wildlife reserve trees and/or green recruitment trees.

(e) In order to provide for safety, landowners may remove any Type 3 or 4 wildlife reserve tree which poses a threat to humans working, recreating, or residing within the hazard area of that tree. In order to provide for fire safety, the distribution of wildlife reserve tree retention areas, described in (d) of this subsection, may be modified as necessary based on a wildlife reserve tree management plan proposed by the landowner and approved by the department.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-30-020, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-30-020, filed 7/21/97, effective 8/21/97; 94-17-033, § 222-30-020, filed 8/10/94, effective 8/13/94; 93-12-001, § 222-30-020, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.060, 76.09.040 and chapter 34.05 RCW. 92-23-056, § 222-30-020, filed 11/17/92, effective 12/18/92. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-30-020, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-30-020, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), § 222-30-020, filed 11/16/87, effective 1/1/88; Order 263, § 222-30-020, filed 6/16/76.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-30-070  Tractor and wheeled skidding systems. .*(1) Typed waters and wetlands.

(a) Tractor and wheeled skidders shall not be used in ((Type 1, 2 or 3 Water)), typed waters except with approval by the department and with a hydraulic project approval of the department of fish and wildlife.

(b) In order to maintain wetland water movement and water quality, and to prevent soil compaction, tractor or wheeled skidders shall not be used in Type A or B Wetlands without prior written approval of the department.

(c) Within all wetlands, tractors and wheeled skidder systems shall be limited to low impact harvest systems. Ground based logging systems operating in wetlands shall only be allowed within wetlands during periods of low soil moisture or frozen soil conditions.

(d) Skidding across any ((flowing Type 4 Water)) Type N water shall be minimized and when done, temporary stream crossings shall be used, if necessary, to maintain stream bed integrity.

(e) Whenever skidding in or across any type water, the direction of log movement between stream banks shall be as close to right angles to the stream channel as is practical.

.*(2) Riparian management zone.

(a) Logging will be permitted within the zone for typed waters. However, any use of tractors, wheeled skidders, or other yarding machines within the zone must be as described in an approved forest practices application or otherwise approved in writing by the department.

(b) Where skidding ((in or through)) across the riparian management zone is necessary, the number of skidding routes through the zone shall be minimized.

(c) Logs shall be skidded so as to minimize damage to leave trees and vegetation in the riparian management zone, to the extent practical and consistent with good safety practices.

.*(3) Wetlands management zones.

(a) Logging will be permitted within wetland management zones.

(b) Where feasible logs shall be skidded at least with one end suspended from the ground so as to minimize soil disturbance and damage to leave trees and vegetation in the wetland management zone.

(c) Tractors, wheeled skidders, or other ground based harvesting systems shall not be used within the minimum WMZ width without written approval of the department.

.*(4) Deadfalls. Logs firmly embedded in the bed or bank of ((Type 1, 2, 3 or 4 Waters)) typed waters shall not be removed or unnecessarily disturbed without hydraulic project approval of the department((s)) of fish((eries or)) and wildlife.

.*(5) Moisture conditions. Tractor and wheeled skidders shall not be used on exposed erodible soils or saturated soils when soil moisture content is so high that unreasonable soil compaction, soil disturbance, or wetland, stream, lake or pond siltation would result.

(6) Protection of residual timber. Reasonable care shall be taken to minimize damage from skidding to the stems and root systems of residual timber and to young reproduction.

.*(7) Skid trail construction.

(a) Skid trails shall be kept to the minimum feasible width.

(b) Reasonable care shall be taken to minimize the amount of sidecast required and shall only be permitted above the ((50)) 100-year flood level.

(c) Skid trails shall be outsloped where practical, but be insloped where necessary to prevent logs from sliding or rolling downhill off the skid trail.

.*(8) Skid trail maintenance. Upon completion of use and termination of seasonal use, skid trails on slopes in exposed soils shall be outsloped with drainage dips or water barred a minimum of every 10-foot vertical change where necessary to prevent soil erosion.

.*(9) Slope restrictions. Tractor and wheeled skidders shall not be used on slopes where in the opinion of the department this method of operation would cause unnecessary or material damage to a public resource.

(10) Disturbance avoidance for northern spotted owls. The operation of heavy equipment within a SOSEA boundary shall not be allowed within 0.25 mile of a northern spotted owl site center between March 1 and August 31, provided that, this restriction shall not apply if:

(a) The landowner demonstrates that the owls are not actively nesting during the current nesting season; or

(b) The forest practice is operating in compliance with a plan or agreement developed for the protection of the northern spotted owl under WAC 222-16-080 (6)(a), (e), or (f).

(11) Disturbance avoidance for marbled murrelets. Operation of heavy equipment shall not be allowed within 0.25 mile of an occupied marbled murrelet site during the daily peak activity periods within the critical nesting season, provided that, this restriction shall not apply if the forest practice is operating in compliance with a plan or agreement developed for the protection of the marbled murrelet under WAC 222-16-080 (6)(a) or (c).

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-30-070, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-30-070, filed 7/21/97, effective 8/21/97. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-30-070, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-30-070, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-30-070, 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), § 222-30-070, filed 8/3/82, effective 10/1/82; Order 263, § 222-30-070, filed 6/16/76.]

AMENDATORY SECTION (Amending WSR 97-24-091, filed 12/3/97, effective 1/3/98)

WAC 222-38-020  Handling, storage, and application of pesticides. .*(1) No pesticide leakage, contamination, pollution.

Transportation, handling, storage, loading, application, and disposal of pesticides shall be consistent with applicable label requirements and other state and federal requirements.

.*(2) Mixing and loading areas.

(a) Mix pesticides and clean tanks and equipment only where any accidental spills would not enter surface water or wetlands.

(b) Storage and loading areas should be located where accidental spillage of pesticides will not enter surface water or wetlands. If any pesticide is spilled, immediate appropriate procedures should be taken to contain it.

(c) Use devices or procedures to prevent "back siphoning" such as providing an air gap or reservoir between the water source and the mixing tank.

.*(3) Riparian management zone. Pesticide treatments within the riparian management zone shall be by hand unless the department has approved a site specific plan with another method of treatment.

.*(4) Wetland management zone. Pesticide treatment within the wetland management zone shall be by hand unless the department has approved a site specific plan with another method of treatment.

.*(5) Aerial application of pesticides. The forest practices board manual outlines the best management practices to be used for aerial application of pesticides. See WAC 222-12-090(16).

(a) To keep pesticides out of the water, leave the following:

Option 1

[(i) A minimum 50 foot buffer width for applications made with favorable wind conditions.

(ii) A minimum of 250 feet for applications made in unfavorable wind conditions.

(iii) An alternate plan of buffer widths less than 250 feet with equal or greater drift protection in unfavorable wind conditions.]

or

Option 2

[(i) A minimum buffer width of 50 feet for applications made with favorable wind conditions.

(ii) Variable buffer widths of 50 to 325 feet subject to spray nozzle type and spray release in unfavorable wind conditions.

(iii) An alternate plan of buffer widths less than 325 feet with equal or greater drift protection in unfavorable wind conditions.]

or

Option 3

(i) A 50 foot buffer strip on all typed waters, except segments of Type ((4 and 5)) N waters with no surface water and other areas of open water, such as ponds or sloughs.

(b) Apply the initial swath parallel to the buffer strip in (a) of this subsection unless a deviation is approved in advance by the department. Drift control agents shall be required adjacent to buffer strips. Avoid applications that might result in drift causing direct entry of pesticides into riparian management zones, Type A and B Wetlands, wetland management zones, and all typed waters, except segments of Type ((4 and 5 Waters)) N waters with no surface water.

(c) Use a bucket or spray device capable of immediate shutoff.

(d) Shut off spray equipment during turns and over open water.

(e) Leave at least a 200 foot buffer strip around residences and 100 foot buffer strip adjacent to lands used for agriculture unless such residence or farmland is owned by the forest landowner or the aerial application is acceptable to the resident or landowner.

(f) The landowner shall identify for the operator the units to be sprayed and the untreated areas within the units with appropriately marked aerial photos or detailed planimetric maps. Before application of the pesticide an over-flight of the area shall be made by the pilot with the marked photos or maps.

(g) Aerial chemical application areas shall be posted by the landowner by signing at significant points of regular access at least 5 days prior to treatment. Posting shall remain at least 15 days after the spraying is complete. The department may require an extended posting period in areas where human use or consumption of plant materials is probable. Posting at formal, signed trailheads that are adjacent to aerially treated units is required. The signs will contain the name of the product used, date of treatment, a contact telephone number, and any applicable restrictions.

.*(6) Ground application of pesticides with power equipment.

Leave a ((25)) 30-foot buffer strip on each side of Type A or B Wetlands and all typed waters, except segments of Type ((4 and 5 Waters)) N waters with no surface water.

.*(7) Hand application of pesticides.

Apply only to specific targets, such as vegetation, trees, stumps, and burrows, or as bait or in traps.

.*(8) Limitations on application. Pesticides shall be applied only in accordance with all limitations:

(a) Printed on the United States Environmental Protection Agency container registration label, and/or

(b) Established by regulation of the state department of agriculture.

(c) Established by state and local health departments (in municipal watersheds).

(d) Established by the Federal Occupational Safety and Health Administration, or the state department of labor and industries, as they relate to safety and health of operating personnel and the public.

(e) The department or the department of agriculture may suspend further use of any equipment responsible for chemical leakage until the deficiency has been corrected to the satisfaction of the department suspending its usage.

.*(9) Container disposal. Pesticide containers shall be either:

(a) Removed from the forest and disposed of in the manner consistent with label directions; or

(b) Removed and cleaned for reuse in a manner consistent with any applicable regulations of the state department of agriculture or the state or local health departments.

.*(10) Daily records - aerial application of pesticides. On all aerial applications of pesticides, the operator shall maintain for 7 years daily records of spray operations as required by the state department of agriculture WAC 16-228-190.

.*(11) Reporting of spills. All potentially damaging chemical spills shall be immediately reported to the department of ecology. Emergency telephone numbers for reporting spills shall be available at the department's regional offices.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-38-020, filed 12/3/97, effective 1/3/98; 93-12-001, § 222-38-020, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-38-020, filed 7/2/92, effective 8/2/92. Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-38-020, filed 9/21/88, effective 11/1/88; 87-23-036 (Order 535), § 222-38-020, 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), § 222-38-020, filed 8/3/82, effective 10/1/82; Order 263, § 222-38-020, filed 6/16/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 93-12-001, filed 5/19/93, effective 6/19/93)

WAC 222-38-030  Handling, storage, and application of fertilizers. .*(1) Storage and loading areas. Storage and loading areas should be located where accidental spillage of fertilizers will not enter surface water or wetlands. If any fertilizer is spilled, immediate appropriate procedures shall be taken to contain it.

.*(2) Riparian management zone. Fertilizer treatments within a riparian management zone shall be by hand unless the department has approved a site specific plan with another method of treatment.

.*(3) Wetland management zone. Fertilizer treatments within a wetland management zone shall be by hand unless the department has approved a site specific plan with another method of treatment.

.*(4) Aerial application of fertilizer.

(a) Proposed fertilization units shall be planned to avoid and to minimize the direct or indirect introduction of fertilizer into waters and wetlands.

(b) Leave a ((25)) 30 foot buffer on all Type ((1, 2, and 3 Waters)) S and F waters, except as noted in (f) of this subsection.

(c) When the helicopter flight path during fertilizer application is parallel to a water course or the WMZ edge, the centerline of the initial swath should be adjusted to prevent direct application within the buffers or WMZs.

(d) Leave at least a 200 foot buffer strip around residences and a 100 foot buffer strip adjacent to lands used for agriculture unless such residence or farmland is owned by the forest landowner or the aerial application is acceptable to the resident or landowner.

(e) The landowner shall identify for the operator the units to be fertilized and the untreated areas within the units with appropriately marked aerial photos or detailed planimetric maps. Before application of the fertilizer, an over-flight of the area shall be made by the pilot with the marked photos or maps.

(f) Where the department has been provided information by the department of ecology indicating that water quality in downstream waters is likely to be impaired by entry of fertilizer into waters, such waters shall be protected by site specific conditioning.

.*(5) Ground and hand application of fertilizers. Prevent fertilizer from entering Type A and B Wetlands and all typed waters, except segments of Type 4 and 5 Waters with no surface water.

.*(6) Reporting of fertilizer spills. All fertilizer spills involving streams, lakes, wetlands, or other waters of the state shall be immediately reported to the department of ecology. Emergency telephone numbers for reporting spills shall be available at the department's regional offices.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 93-12-001, § 222-38-030, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-38-030, filed 7/2/92, effective 8/2/92.]

NEW SECTION

WAC 222-46-055  Compensation for resource damages. The department will develop a schedule of penalties for compensation of resource damages where violations of the forest practices act and/or rules results in material damage to public resources (WAC 222-46-030 and WAC 222-46-040). This schedule should be developed by the department by January 1, 1999 for consideration by the Forest Practices Board for rule adoption. The schedule should be developed in consultation with the departments of fish and wildlife and ecology. Once adopted the schedule can be used to compensate for damage to public resources that cannot be completely recovered, or where the damage to public resources will have effects of a term longer than five years. These monies can be used by the department of natural resources, fish and wildlife or ecology for restorative activities that will mitigate for the resource damage (RCW 76.09.180). Resource damage assessments may be mitigated by the department if the violator chooses to perform restoration that replaces the functions lost as a result of the violation.

[]

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

WAC 222-46-060  Civil penalties. (1) Amount of penalty. Every person who violates any provisions of RCW 76.09.010 through 76.09.280 or of the forest practices rules adopted pursuant thereto, or who converts forest land to a use other than commercial timber operation within three years after completion of the forest practice without the consent of the county, city, or town, shall be subject to a penalty in an amount of not more than ten thousand dollars for each such violation. Each and every such violation shall be a separate and distinct violation. In case of a failure to comply with a stop work order, every day's continuance thereafter shall be a separate and distinct violation.

(2) Penalty assessments shall consider the following:

(a) Repairability of the adverse effect from the violation;

(b) Whether the violation of the act or rules was intentional;

(c) Cooperation with the department;

(d) Previous violation history;

(e) Severity of the impact or the potential for material damage to public resources; and

(f) The extent to which a penalty to be imposed on a forest landowner for a forest practice violation committed by another should be reduced because the owner was unaware of the violation and did not receive substantial economic benefits from the violation.

(3) Calculation of penalty. The department shall evaluate any violation to determine if a civil penalty is warranted. When penalties are to be assessed they shall be calculated using the following process:

(a) Determine the base penalty; see WAC 222-46-065.

(b) The penalty may be adjusted using factors specific to the incident and the site. The following additional factors will be independently considered and added to the base penalty to calculate the civil penalty:

(i) Repairability:

Repairability shall be based on the length of time natural restoration or implementation of a restoration plan will take and whether repair can be achieved. The penalty will be substantially increased when natural restoration will not occur within three years and the damage cannot be effectively corrected. For this factor, up to double the base penalty may be added to the penalty.

(ii) Intention:

In making a determination of intent, the department shall consider, but not be limited to, the following considerations: The foreseeability of the violation; whether precautions were taken to avoid the violation; whether an informal conference or enforcement action was served on the violator prior to the violation. For this factor, up to double the base penalty may be added to the penalty.

(iii) Cooperation:

The department shall consider whether the violator did or did not make any attempt to correct the problem. Timeliness of action(s) and/or ignoring or evading agency contacts or directives shall determine if the penalty shall be increased. For this factor, up to double the base penalty may be added to the penalty.

(iv) Previous violation(s):

The department shall consider whether the violator has previous violations of a forest practice rule or regulation as documented in an enforcement action. The department may consider company organizations and assignment of operational responsibilities when evaluating previous violations. A history of violations with adverse impacts or potential for adverse impacts or that shows a pattern of ignoring the rules or the act, shall result in a substantially larger penalty.

Enforcement actions for the purposes of this section shall include notices to comply, stop work orders, civil penalties, and criminal citations when those enforcement actions are associated with forest practice violations. For this factor, up to quadruple the base penalty may be added to the penalty.

(v) Severity:

The department shall adjust the penalty based on the extent and magnitude of the damage or potential damage to public resources. For this factor, up to quadruple the base penalty may be added to the penalty.

(vi) Landowner involvement:

If in the opinion of the department, the landowner exercised reasonable prudence in the development of timber sale contracts or supervision of the forest practice operations, was unaware of the forest practice violation, and the landowner received no substantial economic benefit from the violation, then the landowner generally would not be assessed a civil penalty.

(c) In accordance with RCW 76.09.170, the penalty may not exceed ten thousand dollars for each and every violation.

(d) The department shall determine whether all or a portion of the penalty should be assessed against the operator, landowner, and/or timber owner. The department should consider the responsible party, the degree of control, the sophistication of the party and whether different parties conducted different violations.

(4) Other participants. Every person who through an act of commission or omission procures, aids or abets in the violation shall be considered to have violated the provisions of this section and shall be subject to the penalty provided for in this section.

(5) Government employees. No penalty shall be imposed under this section upon any governmental official, an employee of any governmental department, agency, or entity, or a member of any board created by the act for any act or omission in his/her duties in the administration of the act or of these rules.

(6) Written notice. The penalty shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the department describing the violation with reasonable particularity.

(7) Remission or mitigation. Within fifteen days after the notice is received, the person incurring the penalty may apply in writing to the ((department's manager of the region in which the penalty was issued)) supervisor of the department or his/her designee, for the remission or mitigation of such penalty. Upon receipt of the application, the department may remit or mitigate the penalty upon whatever terms the department in its discretion deems proper: Provided, That the department deems such remission or mitigation to be in the best interests of carrying out the purposes of the act. The department shall have authority to ascertain the facts regarding all such applications in such reasonable manner and under such rules as they may deem proper. The reviewer may reduce, dismiss or not change the civil penalty. ((Within fifteen days of the completion of the regional review, the person incurring the penalty may apply in writing to the supervisor of the department for further review.))

(8) Right of appeal. Any person incurring any penalty hereunder may appeal the same to the forest practices appeals board. Such appeals shall be filed within thirty days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the department. When such an application for remission or mitigation is made, such appeals shall be filed within thirty days of receipt of notice from the department setting forth the disposition of the application for remission or mitigation. Concurrently with the filing of any appeal to the forest practices appeals board as provided in this section, the appellant shall file a copy of the appeal with the department region from which the penalty was issued and a copy with the office of the attorney general.

(9) Penalties due. The penalty imposed under this section shall become due and payable thirty days after receipt of a notice imposing the same unless application for remission or mitigation is made or an appeal is filed. When such an application for remission or mitigation is made, any penalty incurred under this section shall become due and payable thirty days after receipt of notice setting forth the disposition of such application unless an appeal is filed from such disposition. Whenever an appeal of the penalty incurred is filed, the penalty shall become due and payable only upon completion of all administrative and judicial review proceedings and the issuance of a final order or decision confirming the penalty in whole or in part.

(10) Enforcement. If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon the request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county or of any county in which such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise provided in the Forest Practices Act. In addition to or as an alternative to seeking enforcement of penalties in superior court, the department may bring an action in district court as provided in Title 3 RCW, to collect penalties.

(11) Liens. Penalties imposed under this section for violations associated with a conversion to a use other than commercial timber operation shall be a lien upon the real property of the person assessed the penalty. The department may collect such amounts in the same manner provided in chapter 60.04 RCW for mechanics' liens.

[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-46-060, filed 12/20/93, effective 1/1/94; Order 263, § 222-46-060, filed 6/16/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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

WAC 222-46-065  Base penalty schedule. Violations of WAC 222-20-010, operation without an approved forest practices application/notification, shall have a base penalty of $10,000. All other WAC or RCW violations not specifically mentioned in this list shall have a base penalty of ((five hundred dollars)) $500.

Violations of the following shall have a base penalty of ((two thousand dollars)) $2,000:

[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-46-065, filed 12/20/93, effective 1/1/94.]

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