WSR 97-15-130



[Order 97-06--Filed July 23, 1997, 10:23 a.m.]

Original Notice.

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

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

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

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

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

Statute Being Implemented: Chapter 90.48 RCW.

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

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

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

Name of Proponent: Department of Ecology, governmental.

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

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

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

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

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

Proposal Changes the Following Existing Rules: WAC 222-16-030 provides protection of water quality upstream on fish hatcheries; stream gradient percentages changes from "less than 12%" to "16% or less"; stream channel widths change from "5 ft." to "2 ft. or greater in western Washington" and "3 ft. or greater in eastern Washington"; contributing basin sizes are added to the rule: Fifty acres in western Washington and one hundred seventy-five acres in eastern Washington; DNR is given authority to wave presumption of fish use based on three specific criteria.

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

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

Please refer to WSR 97-15-042.

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) 902-1784.

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

Hearing Location: Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA, on November 12, 1997, at 5:00 p.m.

Assistance for Persons with Disabilities: Contact Forest Practices Board Secretary, (360) 902-1413, by October 13, 1997, TDD (360) 902-1431.

Submit Written Comments to: Doug Rushton, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, FAX (360) 407-6426, by November 30, 1997.

Date of Intended Adoption: December 10, 1997.

July 15, 1997

Dan Silver

Deputy Director

AMENDATORY SECTION (Amending WSR 94-17-011, filed 8/8/94, effective 9/8/94)

WAC 173-202-020 Certain WAC sections adopted by reference. The following sections of the Washington Administrative Code existing on ((September 15, 1994)) July 11, 1997, are hereby adopted by reference as part of this chapter in all respects as though the sections were set forth herein in full:

WAC 222-08-035--Continuing review of forest practices regulations.

WAC 222-12-010--Authority.

WAC 222-12-040--Alternate plans.

WAC 222-12-045--Adaptive management.

WAC 222-12-046--Cumulative effect

WAC 222-12-070--Enforcement policy.

WAC 222-12-090--Forest practices board manual.

WAC 222-16-010--General definitions.

WAC 222-16-030--Water typing system.

WAC 222-16-035--Wetland typing system.

WAC 222-16-050 (1)(a), (1)(e), (1)(h), (1)(i), (3)(b), (3)(c), (3)(d), (3)(e), (3)(f), (3)(n), (3)(o), (3)(p), (4)(c), (4)(d), (4)(e), (5)(b), (5)(c), (5)(d), (5)(e), (5)(f), (5)(h), (5)(n)--Classes of forest practices.

WAC 222-16-070--Pesticide uses with the potential for a substantial impact on the environment.

WAC 222-22-010--Policy.

WAC 222-22-020--Watershed administrative units.

WAC 222-22-030--Qualification of watershed resource analysts, specialists, and field managers.

WAC 222-22-040--Watershed prioritization.

WAC 222-22-050--Level 1 watershed resource assessment.

WAC 222-22-060--Level 2 watershed resource assessment.

WAC 222-22-070--Prescription recommendation.

WAC 222-22-080--Approval of watershed analysis.

WAC 222-22-090--Use and review of watershed analysis.

WAC 222-22-100--Application review prior to watershed analysis.

WAC 222-24-010--Policy.

WAC 222-24-020 (2), (3), (4), (6)--Road location.

WAC 222-24-025 (2), (5), (6), (7), (8), (9), (10)--Road design.

WAC 222-24-030 (2), (4), (5), (6), (7), (8), (9)--Road construction.

WAC 222-24-035 (1), (2)(c), (2)(d), (2)(e), (2)(f)--Landing location and construction.

WAC 222-24-040 (1), (2), (3), (4)--Water crossing structures.

WAC 222-24-050--Road maintenance.

WAC 222-24-060 (1), (2), (3), (6)--Rock quarries, gravel pits, borrow pits, and spoil disposal areas.

WAC 222-30-010--Policy--Timber harvesting.

WAC 222-30-020 (2), (3), (4), (5), (7)(a), (7)(e), (7)(f), (8)(c)--Harvest unit planning and design.

WAC 222-30-025--Green-up: Even-aged harvest size and timing.

WAC 222-30-030--Stream bank integrity.

WAC 222-30-040--Shade requirements to maintain stream temperature.

WAC 222-30-050 (1), (2), (3)--Felling and bucking.

WAC 222-30-060 (1), (2), (3), (5)(c)--Cable yarding.

WAC 222-30-070 (1), (2), (3), (4), (5), (7), (8), (9)--Tractor and wheeled skidding systems.

WAC 222-30-080 (1), (2)--Landing cleanup.

WAC 222-30-100 (1)(a), (1)(c), (4), (5)--Slash disposal.

WAC 222-34-040--Site preparation and rehabilitation.

WAC 222-38-010--Policy--Forest chemicals.

WAC 222-38-020--Handling, storage, and application of pesticides.

WAC 222-38-030--Handling, storage, and application of fertilizers.

WAC 222-38-040--Handling, storage, and application of other forest chemicals.

[Statutory Authority: RCW 90.48.420 and 76.09.040. 94-17-011, 173-202-020, filed 8/8/94, effective 9/8/94; 93-11-062, 173-202-020, filed 5/13/93, effective 6/13/93; 93-01-091 (Order 92-51), 173-202-020, filed 12/16/92, effective 1/16/93. Statutory Authority: Chapters 90.48 and 76.09 RCW. 92-14-098, 173-202-020, filed 6/30/92, effective 8/1/92. Statutory Authority: Chapter 76.09 RCW. 88-22-030 (Order 88-19), 173-202-020, filed 10/27/88. Statutory Authority: RCW 76.09.040. 87-23-017 (Order 87-5), 173-202-020, filed 11/10/87, effective 1/1/88; 83-15-045 (Order DE 82-37), 173-202-020, filed 7/19/83; Order DE 76-32, 173-202-020, filed 7/13/76.]

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