Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-20-996 [05-20-096].

     Title of Rule and Other Identifying Information: Identifying perennial initiation points of nonfish perennial steams.

     Hearing Location(s): Community Colleges of Spokane, Colville Center, 985 South Elm Street, Colville, WA, on September 28, 2006, at 5:00 p.m.; and at the CottonTree Inn, 2300 Market Street, Mount Vernon, WA, on October 12, 2006, at 5:00 p.m.

     Date of Intended Adoption: November 1, 2006.

     Submit Written Comments to: Patricia Anderson, Department of Natural Resources, Forest Practices Division, 1111 Washington Street S.E., P.O. Box 47012, Olympia, WA 98504-7012, e-mail forest.practicesboard@wadnr.gov, fax (360) 902-1428, by October 13, 2006.

     Assistance for Persons with Disabilities: Contact Forest Practices Division at (360) 902-1400, by September 18, 2006, TTY (360) 902-1125.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 222-16-030(3) and 222-16-031(4) currently give an option to landowners to employ default basin sizes for western and eastern Washington on Type Np/Type 4 (perennial nonfish) streams. This was provided for landowners who cannot identify the uppermost point of perennial flow with simple, nontechnical observations.

     A scientific study has been completed under the scientific-based adaptive management process (RCW 76.09.370 and WAC 222-12-045.) The study, Type N Stream Demarcation Study, Phase I: Pilot Results, indicates that the default basin sizes available for use in determining stream perennial initiation points are incorrect, i.e., they are too large. Therefore, the forest practices board is considering changes to WAC 222-16-030(3) and 222-16-031(4) that will:

•     Eliminate the option to use a default basin size.

•     Reference Forest Practices Board Manual Section 23 which will provide guidance on identifying the uppermost point of perennial flow on nonfish perennial streams. The guidance will include a method to use during the dry season, a method to use during the wet season, and a mapping method for landowners who do not have legal access to the channel head.

     The rule amendments would affect landowners who would have used a default basin size to determine the demarcation between nonfish seasonal and nonfish perennial streams.

     Reasons Supporting Proposal: The forest practices board adaptive management program found that the default basin sizes listed in WAC 222-16-030(3) and 222-16-031(4) are incorrect and cannot be scientifically supported as an optional method to determine perennial initiation points of nonfish streams.

     Statutory Authority for Adoption: RCW 76.09.040.

     Statute Being Implemented: RCW 76.09.370.

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

     Name of Proponent: Forest practices board, governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Jed Herman, 1111 Washington Street S.E., Olympia, (360) 902-1684; and Enforcement: Lenny Young, 1111 Washington Street S.E., Olympia, (360) 902-1744.

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

     The Administrative Procedure Act (chapter 34.05 RCW)¹ requires completion of a cost-benefit analysis (CBA) prior to rule adoption that demonstrates that probable benefits of the proposal exceed its probable costs and that it is the most cost-effective means of achieving the goal of the rule change. A small business economic impact statement (SBEIS) is required by the Regulatory Fairness Act (chapter 19.85 RCW)² to consider the impacts of state administrative rules on small businesses, defined as those with fifty or fewer employees. An SBEIS compares the costs of compliance for small businesses with the cost of compliance for the ten percent of businesses that are the largest businesses required to comply with the proposed rules.

     This economic analysis combines the SBEIS and the CBA and complies with the legislative requirements for these analyses as part of the rule-making process.

     HISTORICAL CONTEXT: The forests and fish rules established a water typing system that subdivides nonfish bearing streams (Type N) into two categories:

•     Perennial segments (Type Np waters are perennial non-fish streams.) do not go dry any time of a normal rainfall year (including "spatially intermittent" channels that may contain dry reaches below the uppermost point of perennial flow).

•     Seasonal segments (Type Ns waters are seasonal non-fish streams.) go dry "in a year of normal rainfall."

     (See WAC 222-16-030 and 222-16-031 for complete definitions.)

     Perennial stream segments are given special protection during forest practices activities as provided in WAC 222-30-021 (western Washington) and 222-30-022 (eastern Washington), including buffering of at least half of the Type Np stream length. On parcels of twenty acres or less, landowners with total parcel ownership of less than eighty forested acres are exempt from buffering requirements. Seasonal segments are subject to more limited protection. The identification of the point at which a Type Ns stream becomes a Type Np stream, known as the perennial initiation point (PIP), is therefore, an important component of forest practices applications.

     Under certain circumstances, it is difficult if not impossible to determine PIPs in the field. These include cases where the applicant does not have access to relevant stream segments or during the wet season or in unusually wet or dry periods. To accommodate such situations, WAC 222-16-030(3) and 222-16-031(4) includes a default method for identifying a PIP "if the uppermost point of perennial flow cannot be identified with simple, nontechnical observations." The default method locates the PIP at the point along the channel where the contributing basin area is:

     (a) At least thirteen acres in the western Washington sitka spruce coastal zone (coastal zone);

     (b) At least fifty-two acres in other locations in western Washington; or

     (c) At least three hundred acres in eastern Washington.

     It was agreed during the forests and fish negotiations that determining PIPs "will require a better understanding of the natural variability of the spatially intermittent component of perennial streams." (Forests and Fish Report, Appendix B (B.1)(e)(iii), April 1999) A study was subsequently initiated through the Washington State Forest Practices Board's Cooperative Monitoring, Evaluation and Research Committee (CMER) to gather data to "refine the demarcation of perennial and seasonal Type N streams."³ Ten "cooperators" (seven tribal, one state agency, and two timber industry) collected field data at 224 Type N streams in nine study areas on the Westside of the Cascade Crest in western Washington and six on the Eastside in eastern Washington. The study found that observed basin areas were smaller than the forests and fish rules default basin areas (described in WAC 222-16-030 and 222-16-031). The CMER study found that median observed basin areas for the coastal, western and eastern default regions were two, seven and thirty-six acres, and average observed basin areas were eight, twenty-four and one hundred eighteen acres, respectively. These findings suggest that some PIPs determined by the default method will be downstream of the true PIP, possibly resulting in inadequate buffering.

     In light of the study findings, forests and fish policy recommended elimination of the default method, to be replaced by language that refers landowners to forest practices board Manual Section 23, which is under development.

     PROPOSED RULES SUMMARY: The proposed rule making replaces language in WAC 222-16-030(3) and 222-16-031(4) that provides default basin sizes with language that refers landowners to board manual Section 23, "Guidelines to Identify Perennial Streams and Locate Divisions Between Stream Types," currently under development. The board manual provides methodology to locate the uppermost point of perennial flow in Type Np water during the seasonal low-flow period and the wet period, as well as an alternative in cases where the landowner does not have access to the full reach of a Type Np stream. No changes are proposed to stream classification, the definition of PIPs, or to the protections that are provided to riparian areas.

     ECONOMIC ANALYSIS: To comply with the Administrative Procedure Act and Regulatory Fairness Act this analysis identifies potentially affected industries, defines small and large businesses and determines if there is a disproportionate economic impact on small businesses, in which case the Regulatory Fairness Act requires that the cost imposed by the rule on small businesses be reduced where legal and feasible to meet the rule's objective. If steps are not taken to reduce the costs on small businesses, the agency must provide reasonable justification.

     Potentially Affected Industries: The rule-complying community affected by the proposal is businesses that own or control the cutting rights on forest land or those with the right to dispose of the timber.

     Small Businesses Versus Large Businesses: The Regulatory Fairness Act defines a "small business" as one with fifty or fewer employees. Forest ownership acreage is generally a more appropriate metric for characterizing small businesses in the timber industry. Small businesses are identified in this economic analysis as those meeting the state's eligibility criteria for small forest landowner status in the forestry riparian easement program; generally those who harvest less than two million board feet per year. All other private landowners are categorized as "large businesses" for purposes of this analysis.

     Benefits and Costs Included in the Analysis: The costs of the rule change are measured as the potential loss of timber revenue, based on an estimate of the timber acreage affected by the rule making. Benefits are defined as the value of protecting the habitat, but are not quantified, as there is no known research that quantifies the benefits of protecting nonfish bearing riparian habitat that is applicable to Washington. Methodology is further discussed below.

     Involvement of Concerned Stakeholders: This rule making is the result of the forests and fish adaptive management process described in WAC 222-12-045. This is a formal process including scientists and policy makers who represent stakeholders of Washington forest practices: Landowners of large and small forest land acreage, environmental and conservation organizations, tribal organizations, federal and state natural resource agencies, and Washington counties.

     Upon completion of the Type N Stream Demarcation Study, and forests and fish policy's petition of the forest practices board to conduct rule making, DNR's forest practices division held stakeholder meetings to encourage participation in rule development. Those meetings took place on April 11, May 12, and May 18, 2006. Representatives from all forests and fish stakeholder groups were invited to attend these meetings; in general, representatives from all groups participated in one or more of them.

     METHODS OF ANALYSIS: The goal of the rule making is to accurately identify perennial initiation points (PIPs). As such, it is meant to correct an inaccuracy in current practice and does not increase regulatory burden. In practice, however, it will decrease the amount of harvestable timber in riparian areas, thus affecting those timber harvesters who would have utilized the alternative default method.

     This analysis estimates the acreage and value of timber that will not be harvested annually because of the rule change. The estimate is based on a random survey of forest practices applications (FPAs) and an in-house GIS analysis of the expected change in the location of PIPs. Findings have been extrapolated statewide. The effects on small businesses (small forest landowners) are highlighted where appropriate.

     Fifty FPAs submitted during the period June 1, 2005, through May 31, 2006, were randomly selected from each of DNR's six regions. Foresters were asked to report on the following:

•     Landowner designation (small forest landowner or industry).

•     Presence of Type Np water.

•     Zone (coastal, western, or eastern).

•     Method used to calculate PIP (field or default).

•     Total length of Type Np waters.

     Summary statistics generated from the surveys include the proportion of large versus small forest landowners, the percentage of FPAs where Type Np water was present, the percentage of FPAs that utilized the default method for identifying PIPs, and whether small forest landowners were more or less likely to utilize the default method. (See Table 1.)

     For the GIS analysis, we randomly selected three basins and applied the default basin methodology to determine the PIP. We then applied the findings of the CMER study and identified a revised PIP. Based on this analysis, we calculated the percentage change in a typical Type Np stream length for each of the three zones. We then applied the change in Type Np stream length reported in the survey to those applications utilizing the default method. We scaled this to an annual statewide estimate based on the number of FPAs in each region to produce an annual estimate of the additional stream length that would be affected by the proposed rule change. We then estimated the additional buffering acreage required and the resulting financial loss of timber harvest.

     ANALYSIS OF COSTS:

     Survey Results: The results of the survey of FPAs are summarized in Table 1. A large majority of FPAs from the northeast region were from small forest landowners (SFLs), while for the other regions, most FPAs were from large forest landowners. Less than one-quarter of the FPAs had Type Np water on site; the proportion was highest (36%) in the Pacific Cascade region and lowest (14%) in the northeast region.

•     The majority of FPAs with Type Np water on site (twenty-nine out of fifty-five) were in the western Washington zone; of the remainder, nine were in the coastal zone and seventeen in the eastern Washington zone.

•     SFLs accounted for thirteen, or 24%, of these FPAs.

•     The default method was utilized by ten (18%) of these FPAs; SFLs were more likely to use the default method (38%) than were large applicants (12%).

•     Of the 134,715 feet of Type Np stream length measured in these FPAs, 15,900 feet wasere in FPAs that utilized the default method, accounting for 12% of the total. More than half (53%) of this stream length was in FPAs from SFLs.

•     Annually, 1,042 FPAs are approved that include Type Np water on site; of these, 66% are in the western Washington zone, and 17% are in each of the coastal and eastern Washington zones.

•     SFLs account for 17% of statewide FPAs and 14% of the total Type Np stream length.

•     Default methodology is utilized by 15% of the FPAs, but of the estimated one hundred eighty small forest landowners' FPAs with Type Np water, 52% utilize the default method.

•     Over 2.2 million board feet of Type Np stream length are included in FPAs annually.

•     240,416 feet of Type Np stream length is included in FPAs that utilize the default method, accounting for 11% of the total.

     Statewide Estimation of the Change in Type Np Stream Length Due to Rule Making: GIS modeling was performed on typical basins in the coastal, western and eastern zones to estimate the change in Type Np stream length, resulting in multipliers for the three zones that measure this change. We adjusted the estimated Type Np stream length in FPAs by these multipliers, providing a statewide estimation of the change in Type Np stream length due to rule making.

     GIS Analysis of Changes in Type Np Stream Length: We estimated the change in Type Np stream length by locating default PIPs based on applying average observed basin areas from the CMER report. We selected three basins for analysis, one each from the coastal, westside and eastside zones⁴. We calculated PIPs for each of the streams in the basin based on the existing default criteria, as well as the criteria presented in the CMER study. Results are presented in Table 4.

     It is important to note that, although this analysis was based on applying existing default basin methodology, and utilizing the findings of the CMER study for comparative basin sizes, there are no plans to utilize this criteria in rule making. We are assuming in this analysis that this criteria accurately identifies PIPs for estimation purposes only.

     Estimating Additional Type Np Stream Length Statewide: We estimated the additional Type Np stream length that would be subject to buffering annually by multiplying the extrapolated statewide stream length presented in Table 3 by the additional Type Np stream length multipliers presented in Table 4. This analysis is based on only the ten FPAs in the survey that utilized the default method to find PIPs; therefore, based on GIS analysis, it is not statistically robust. For this reason, we are not presenting summary information categorized by DNR region or zone. In order to fulfill the requirements of the Regulatory Fairness Act, we have presented small forest landowner findings separately.

     Of the ten subject FPAs, one applicant was eligible for the twenty-acre exemption, and is not subject to forests and fish riparian rules, leaving us with nine FPAs for further analysis.

     The steps involved in estimating the affected acreage (presented in Table 5) are as follows:

•     We estimated the additional stream length by multiplying the statewide stream length for each of the subject FPAs by the multipliers in Table 4, and scaled this to statewide.

•     Assuming that 100% of the additional Type Np stream length would be buffered in eastern Washington (which is standard procedure), and 50% would be buffered in western Washington, we multiplied the additional stream length calculated above by 100% in eastern Washington and 50% in western Washington.

•     We converted these figures into square feet by multiplying by one hundred, producing the Type Np buffer requirement.

•     We converted square footage into acreage by dividing by 43,560.

     Estimating the value of timber that will not be harvested due to the proposed rule change: We assumed that all of the newly buffered acreage would have been harvested by the applicant, and utilized average values for merchantable timber of $2,500 per acre in western Washington and $1,250 in eastern Washington⁵. The first of these assumptions is an overstatement, as some harvests are partial or thinnings, particularly in eastern Washington. The second assumption is probably an understatement, since applicants are more likely to be harvesting mature tree stands that would have a higher per-acre value.

     The total estimated timber value that will not be harvested annually due to the proposed rule change is $1.2 million; small forest landowners account for 63% of this amount.

     Small Business Impacts: Our analysis indicates that small forest landowners are more likely to utilize the default method for calculating PIPs. We estimate that the foregone timber revenue will be approximately $787,000 per year from SFLs, compared to $457,000 for large forest landowners, resulting in a disproportionate affect on small businesses.

     Compliance costs for small businesses are partially mitigated by participation in the forestry riparian easement program (FREP), which disbursed $8 million to small forest landowners during the 2005-07 biennium. The FREP compensates eligible small forest landowners in exchange for a fifty-year easement on "qualifying timber." Landowners cannot cut or remove the qualifying timber during the easement period. The landowner still owns the property and retains full access, but has "leased" the trees and their associated riparian function to the state. Participating landowners are compensated at 50% of the value of the qualifying timber, and they are compensated fully for any portion exceeding the regulatory impact of 19.1%.

     BENEFITS: The benefits of buffering riparian areas include:

•     Stream stability

•     Nutrient removal

•     Pollution prevention

•     Stream temperature regulation

•     Erosion control

•     Flood control

•     Recreation

•     Wildlife habitat.

     Some of these benefits are avoided costs, such as natural filtration as a replacement for more costly pollution control, and others reflect environmental amenity values. A number of studies have been completed that value some of these aspects, including flood mitigation, value of fisheries, recreation expenditures, and willingness to pay to protect habitat for individual species. Unfortunately, we did not find any studies that valued riparian buffers in general. Compounding problems associated with this dearth of information, we cannot apply the findings of studies that valued specific aspects of riparian buffers on fish-bearing streams to nonfish bearing streams. Likewise, we cannot estimate the marginal benefits of protecting additional riparian buffers on nonfish bearing streams. However, we can generally assume that the benefits of buffering riparian areas are considerable.

     CONCLUSION: This economic analysis estimates the costs of the proposed rule making on an annual basis. Costs are defined as the estimated timber harvest revenue that could have taken place if the provisions of the proposed rule change were not in place. We estimated costs by surveying one year's worth of FPAs to determine the frequency of use of the default method to identify PIPs, scaling our findings to the level of annual statewide timber harvesting. We then applied GIS-based modeling to determine the degree of change in Type Np stream length in FPAs that would have used the default method, and the additional buffering this would require. We estimate that an additional seven hundred sixty-five acres would be buffered annually, including five hundred thirty-five small forest landowner acres. The total estimated timber value that will not be harvested annually due to the proposed rule change is $1.2 million, with small forest landowners accounting for $787,000, or 63%, of this. Participation in the forestry riparian easement program (FREP) can mitigate a significant portion of these costs for small forest landowners.

     An estimated one hundred fifty-five out of one thousand forty-two FPAs used the default instead of field verification. As discussed in the report, this analysis necessitated a number of assumptions that were not field tested; in addition, the number of FPAs that utilized the default method (n=10) was too small to be statistically robust. These findings should therefore be considered at best as providing an indication of the scale of the effects of the proposed rule change.

     Benefits are identified but not quantified due to the lack of relevant information. Under these circumstances, we can generally conclude that the benefits of buffering riparian areas are considerable; whether they are greater than the costs to affected timber harvesters in this case is inconclusive. Consideration should also be given to the distribution of costs and benefits. While the benefits accrue generally, the costs are borne by a limited number of forest practices applicants.

     REFERENCES:

     Palmquist, R. 2005. Type N Stream Demarcation Study Phase I: Pilot Results. Washington State Cooperative Monitoring, Evaluation, and Research Committee (CMER), Olympia, Washington. 61p.

     Palone, R. and Todd, A. 1997. Chesapeake Bay Riparian Handbook: A Guide for Establishing and Maintaining Riparian Forest Barriers. USDA Forest Service. Radnor, PA. NA-TP-02-97.

     Paterson, R. and Boyle, K. 2005. Costs and Benefits of Riparian Forest Management: A Literature Review. Industrial Economics, Inc. 20p.

¹ For CBA requirements, see RCW 34.05.328 - the Washington state legislature.

² For SBEIS requirements, see RCW 19.85.040 - the Washington state legislature.

³ Type N Stream Demarcation Study Phase I: Pilot Results. CMER, 2005.

⁴ Although these basins were carefully chosen to be representative of each zone, the results of our analysis are not statistically significant.

⁵ These values were provided to us by DNR product sales and leasing staff.

     A copy of the statement may be obtained by contacting Gretchen Robinson, Department of Natural Resources, P.O. Box 47012, Olympia, WA 98504-7012, phone (360) 902-1705, fax (360) 902-1428, e-mail gretchen.robinson@wadnr.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Gretchen Robinson, Department of Natural Resources, P.O. Box 47012, Olympia, WA 98504-7012, phone (360) 902-1705, fax (360) 902-1428, e-mail gretchen.robinson@wadnr.gov.

August 21, 2006

Pat McElroy

Chair

OTS-9073.3

AMENDATORY SECTION(Amending WSR 05-12-119, filed 5/31/05, effective 7/1/05)

WAC 222-16-030   Water typing system.   Until the fish habitat water type maps described below are adopted by the board, the Interim Water Typing System established in WAC 222-16-031 will continue to be used. The department in cooperation with the departments of fish and wildlife, and ecology, and in consultation with affected Indian tribes will classify streams, lakes and ponds. The department will prepare water type maps showing the location of Type S, F, and N (Np and Ns) Waters within the forested areas of the state. The maps will be based on a multiparameter, field-verified geographic information system (GIS) logistic regression model. The multiparameter model will be designed to identify fish habitat by using geomorphic parameters such as basin size, gradient, elevation and other indicators. The modeling process shall be designed to achieve a level of statistical accuracy of 95% in separating fish habitat streams and nonfish habitat streams. Furthermore, the demarcation of fish and nonfish habitat waters shall be equally likely to over and under estimate the presence of fish habitat. These maps shall be referred to as "fish habitat water typing maps" and shall, when completed, be available for public inspection at region offices of the department.

     Fish habitat water type maps will be updated every five years where necessary to better reflect observed, in-field conditions. Except for these periodic revisions of the maps, on-the-ground observations of fish or habitat characteristics will generally not be used to adjust mapped water types. However, if an on-site interdisciplinary team using nonlethal methods identifies fish, or finds that habitat is not accessible due to naturally occurring conditions and no fish reside above the blockage, then the water type will be immediately changed to reflect the findings of the interdisciplinary team. The finding will be documented on a water type update form provided by the department and the fish habitat water type map will be updated as soon as practicable. If a dispute arises concerning a water type the department shall make available informal conferences, as established in WAC 222-46-020 which shall include the departments of fish and wildlife, and ecology, and affected Indian tribes and those contesting the adopted water types.

     The waters will be classified using the following criteria:

     *(1) "Type S Water" means all waters, within their bankfull width, as inventoried as "shorelines of the state" under chapter 90.58 RCW and the rules promulgated pursuant to chapter 90.58 RCW including periodically inundated areas of their associated wetlands.

     *(2) "Type F Water" means segments of natural waters other than Type S Waters, which are within the bankfull widths of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of 0.5 acre or greater at seasonal low water and which in any case contain fish habitat or are described by one of the following four categories:

     (a) Waters, which 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 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) Waters, which are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type F Water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality. The department may allow additional harvest beyond the requirements of Type F Water designation provided the department determines after a landowner-requested on-site assessment by the department of fish and wildlife, department of ecology, the affected tribes and interested parties that:

     (i) The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and

     (ii) Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery;

     (c) Waters, which are within a federal, state, local, or private campground having more than 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;

     (d) Riverine ponds, wall-based channels, and other channel features that are used by fish for off-channel habitat. These areas are critical to the maintenance of optimum survival of fish. This habitat shall be identified based on the following criteria:

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

     (ii) The off-channel water must be accessible to fish.

     (3) "Type Np Water" means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are flowing waters that do not go dry any time of a year of normal rainfall((. However, for the purpose of water typing, Type Np Waters)) and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. ((If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations (see board manual section 23), then Type Np Waters begin at a point along the channel where the contributing basin area is:

     (a) At least 13 acres in the Western Washington coastal zone (which corresponds to the Sitka spruce zone defined in Franklin and Dyrness, 1973);

     (b) At least 52 acres in other locations in Western Washington; or

     (c) At least 300 acres in Eastern Washington.)) See board manual section 23 for guidance if the uppermost point of perennial flow cannot be identified with simple, nontechnical observations.

     (4) "Type Ns Water" means all segments of natural waters within the bankfull width of the defined channels that are not Type S, F, or Np Waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np Water. Ns Waters must be physically connected by an above-ground channel system to Type S, F, or Np Waters.

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

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

     (e) "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.

     (f) "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 (see board manual section 23).

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

     (h) "Fish habitat" means habitat which is used by any fish at any life stage at any time of the year, including potential habitat likely to be used by fish which could be recovered by restoration or management and includes off-channel habitat.

[Statutory Authority: RCW 76.09.040. 05-12-119, § 222-16-030, filed 5/31/05, effective 7/1/05. Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-16-030, filed 5/30/01, effective 7/1/01. 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.]

     For the purposes of this interim water typing system see the following table:

Water Type Conversion Table

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

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

     (a) Are diverted for domestic use by more than 100 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the department to be a valid appropriation of water and only considered Type 2 Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

     (b) Are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type 2 Water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality. The department may allow additional harvest beyond the requirements of Type 2 Water designation provided by the department of fish and wildlife, department of ecology, the affected tribes and interested parties that:

     (i) The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and

     (ii) Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery;

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

     (d) Are used by 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 within the bankfull width 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

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

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

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

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

     (a) Are diverted for domestic use by more than 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 fish for spawning, rearing or migration. The requirements for determining fish use are described in the board manual section 13. If fish use has not been determined:

     (i) Waters having any of the following characteristics are presumed to have fish use:

     (A) Stream segments having a defined channel of 2 feet or greater within the bankfull width in Western Washington; or 3 feet or greater in width in Eastern Washington; and having a gradient of 16 percent or less;

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

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

     (D) Ponds of impoundments having a surface area greater than 0.5 acre at seasonal low water.

     (ii) The department shall waive or modify the characteristics in (i) of this subsection where:

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

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

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

     *(4) "Type 4 Water" means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are flowing waters that do not go dry any time of a year of normal rainfall((. However, for the purpose of water typing, Type 4 Waters)) and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. ((If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations (see board manual, section 23), then Type 4 Waters begin at a point along the channel where the contributing basin area is:

     (a) At least 13 acres in the Western Washington coastal zone (which corresponds to the Sitka spruce zone defined in Franklin and Dyrness, 1973);

     (b) At least 52 acres in other locations in Western Washington;

     (c) At least 300 acres in Eastern Washington.)) See board manual section 23 for guidance if the uppermost point of perennial flow cannot be identified with simple, nontechnical observations.

     *(5) "Type 5 Waters" means all segments of natural waters within the bankfull width of the defined channels that are not Type 1, 2, 3, or 4 Waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of the year and are not located downstream from any stream reach that is a Type 4 Water. Type 5 Waters must be physically connected by an above-ground channel system to Type 1, 2, 3, or 4 Waters.

     *(6) For purposes of this section:

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

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

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

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

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

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

     (e) "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.

     (f) "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. (See board manual section 23.)

[Statutory Authority: RCW 76.09.040. 05-12-119, § 222-16-031, filed 5/31/05, effective 7/1/05. Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-16-031, filed 5/30/01, effective 7/1/01.]

© Washington State Code Reviser's Office