WSR 02-05-087

PROPOSED RULES

FOREST PRACTICES BOARD


[ Filed February 20, 2002, 10:45 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-24-111.

Title of Rule: SEPA guidance for wildlife conservation agreements.

Purpose: This rule would offer clarification for SEPA guidance for forest practices consistent with a wildlife conservation agreement.

Statutory Authority for Adoption: RCW 76.09.040, 43.21C.060, and 43.21C.120.

Statute Being Implemented: Chapter 76.09 RCW.

Summary: The proposed negotiated rule language offers clarification that State Environmental Policy Act (SEPA) policies in chapter 222-10 WAC for species covered by an agreement that has received environmental review with an opportunity for public comment under the National Environmental Policy Act (NEPA), the State Environmental Policy Act (SEPA), or the Endangered Species Act (ESA) for threatened and endangered species do not apply to forest practices that are consistent with a wildlife conservation agreement listed in WAC 222-16-080(6).

Reasons Supporting Proposal: The proposed changes would make this chapter consistent with existing rules concerning wildlife conservation agreements. The changes would make clear that the existing SEPA guidelines for threatened and endangered species do not apply to forest practices, which are consistent with one of these agreements.

Name of Agency Personnel Responsible for Drafting: Ashley Demoss, 1111 Washington Street S.E., Olympia, (360) 902-1388; Implementation and Enforcement: Lenny Young, 1111 Washington Street S.E., Olympia, (360) 902-1744.

Name of Proponent: Forest Practices Board, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed language is the result of stakeholder negotiations.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed changes to chapter 222-10 WAC would make clear that existing SEPA guidelines for threatened and endangered species do not apply to forest practice activities consistent with a wildlife conservation agreement listed in WAC 222-16-080(6) for species covered by those agreements that have received environmental review with an opportunity for public comment under SEPA [NEPA], SEPA, or ESA.

Proposal Changes the Following Existing Rules: WAC 222-10-040, amended to clearly describe that SEPA policies do not apply to forest practices covered by some types of wildlife conservation agreements.

WAC 222-10-041, amended to remove outdated information.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is unnecessary because the proposed rule changes are likely to result in only minor costs.

RCW 34.05.328 applies to this rule adoption. A statement will be prepared according to the requirements set forth in RCW 34.05.328 that takes into account both the qualitative and quantitative benefits and costs of the specific directives of the statute being implemented.

Hearing Location: Natural Resources Building, 1111 Washington Street S.E., First Floor, Room 172, Olympia, WA 98504, on March 26, 2002, at 3 p.m.

Assistance for Persons with Disabilities: Contact Patricia Anderson by March 15, 2002, TDD (360) 902-1125, or (360) 902-1413.

Submit Written Comments to: Patricia Anderson, Rules Coordinator, Forest Practices Board, P.O. Box 47012, Olympia, WA 98504-4701, e-mail forest.practicesboard@wadnr.gov, fax (360) 902-1428, by March 28, 2002, 5 p.m.

Date of Intended Adoption: May 8, 2002.

February 19, 2002

Pat McElroy

Chair

OTS-5485.1


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

WAC 222-10-040   Class IV-Special threatened and endangered species 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 threatened or endangered species.

(1) The department shall consult with the department of fish and wildlife, other agencies with expertise, affected landowners, affected Indian tribes, and others with expertise when evaluating the impacts of forest practices. If the department does not follow the recommendations of the department of fish and wildlife, the department shall set forth in writing a concise explanation of the reasons for its action.

(2) In order to determine whether forest practices are likely to have a probable significant adverse impact, and therefore require an environmental impact statement, the department shall evaluate whether the forest practices reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of the survival or recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.

(3) Specific mitigation measures or conditions shall be designed to reduce any probable significant adverse impacts identified in subsection (2) of this section.

(4) The department shall consider the species-specific policies in WAC 222-10-041 and 222-10-042 when reviewing and evaluating SEPA documents and the impacts of forest practices.

(5) The SEPA policies in this section and the specific SEPA policies for threatened and endangered species do not apply to forest practices that are consistent with a wildlife conservation agreement listed in WAC 222-16-080(6) that has received environmental review with an opportunity for public comment under the National Environmental Policy Act, 42 U.S.C. section 4321 et seq., the Endangered Species Act, 16 U.S.C. section 1531 et seq., or the State Environmental Policy Act, chapter 43.21C RCW.

[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, 222-10-040, filed 12/3/97, effective 1/3/98. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038 and 96-14-081, 222-10-040, filed 5/31/96 and 7/1/96, effective 7/1/96 and 8/1/96.]


AMENDATORY SECTION(Amending WSR 01-12-042, filed 5/30/01, effective 7/1/01)

WAC 222-10-041   Northern spotted owls.   ((The effective date of this section is July 1, 1996.)) The following policies shall apply to forest practices subject to SEPA if the forest practices may cause adverse impacts to northern spotted owls.

(1) In SOSEAs or areas of SOSEAs where the goal is demographic support, suitable spotted owl habitat should be maintained either to protect the viability of the owl(s) associated with each northern spotted owl site center or to provide demographic support for that particular SOSEA as described in the SOSEA goals.

(2) In SOSEAs or areas of SOSEAs where the goal is dispersal support, either suitable spotted owl habitat should be maintained to protect the viability of the owl(s) associated with each northern spotted owl site center or dispersal habitat should be managed, over time, to provide the dispersal support for that particular SOSEA as described in the SOSEA goals. Dispersal support is provided by a landscape which includes dispersal habitat at the stand level interspersed with areas of higher quality habitat. Stands of dispersal habitat should be managed to reduce gaps between stands and to maintain a sufficient level of dispersal habitat to meet the SOSEA goals over time.

(3) In SOSEAs or areas of SOSEAs where the goal is a combination of dispersal support and demographic support, either suitable spotted owl habitat should be maintained to protect the viability of the owl(s) associated with each northern spotted owl site center or a variety of habitat conditions should be provided which in total are more than dispersal support and less than demographic support. This can be accomplished by providing:

(a) Dispersal support as described in subsection (2) of this section;

(b) Areas of suitable spotted owl habitat that contain some opportunities for nesting as well as roosting and foraging habitat; and

(c) Connectivity between areas of SOSEAs designated for demographic support or adjacent federal lands which are designated as late successional reserves, congressionally reserved areas, or administratively withdrawn areas.

(4) Within SOSEAs, the following amounts of suitable habitat are generally assumed to be necessary to maintain the viability of the owl(s) associated with each northern spotted owl site center, in the absence of more specific data or a mitigation plan, as provided for in subsections (6) and (7) of this section respectively:

(a) All suitable spotted owl habitat within 0.7 mile of each northern spotted owl site center;

(b) Including the suitable spotted owl habitat identified in (a) of this subsection:

(i) For the Hoh-Clearwater/Coastal Link SOSEA - A total of 5,863 acres of suitable spotted owl habitat within the median home range circle (2.7 mile radius).

(ii) For all other SOSEAs - A total of 2,605 acres of suitable spotted owl habitat within the median home range circle (1.8 mile radius).

The department shall first identify the highest quality suitable spotted owl habitat for this purpose. Consideration shall be given to habitat quality, proximity to the activity center and contiguity in selecting the most suitable habitat. Suitable spotted owl habitat identified outside 0.7 mile of a northern spotted owl site center may support more than one median home range circle.

Suitable spotted owl habitat harvested by a landowner shall continue to be counted as part of the total acres necessary under (b) of this subsection for other landowners within the median home range circle if the harvest is conducted pursuant to agreements or plans approved under subsection (6) of this section or WAC 222-16-080 (1)(h)(iv), (6)(a)(iv), or (f).

(5) Outside SOSEAs, during the nesting season (between March 1 and August 31), seventy acres of the highest quality suitable spotted owl habitat surrounding a northern spotted owl site center should be maintained. The seventy acres for one site center shall not be utilized for meeting suitable habitat needs of any other site center.

(6) The assumptions set forth in subsection (4) of this section are based on regional data. Applicants or others may submit information that is more current, accurate, or specific to a northern spotted owl site center, proposal, or SOSEA circumstances or goals. The department shall use such information in making its determinations under this section where the department finds, in consultation with the department of fish and wildlife, that the information is more likely to be valid for the particular circumstances than the assumptions established under subsection (4) of this section. If the department does not use the information, it shall explain its reasons in writing to the applicant.

(7) The department shall consider measures to mitigate identified adverse impacts of an applicant's proposal. Mitigation measures must contribute to the achievement of SOSEA goals or to supporting the viability of impacted northern spotted owl site centers.

[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, 222-10-041, filed 5/30/01, effective 7/1/01. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, 222-10-041, filed 5/31/96, effective 7/1/96.]

Washington State Code Reviser's Office