Z-0668.1
_______________________________________________
SENATE BILL 5896
_______________________________________________
State of Washington
56th Legislature
1999 Regular Session
By Senators Jacobsen, Oke, Loveland, Swecker, Hale, T. Sheldon,
Rasmussen, Rossi, Haugen, West and Winsley; by request of GovernorLocke
Read first time 02/15/1999. Referred to Committee on Natural
Resources, Parks & Recreation.
AN ACT Relating to forest practices as
they affect the recovery of
salmon and other aquatic resources; amending RCW 76.09.020, 84.33.081,
76.13.010, 76.42.060, 76.09.330, 76.09.140, 76.09.150, 76.09.170,
76.09.040, 76.09.010, 76.09.080, 76.09.090, 76.09.030, and 90.48.420;
reenacting and amending RCW 76.09.220; adding new sections to chapter
75.46 RCW; adding new sections to chapter 76.09 RCW; adding a new
section to chapter 34.05 RCW; adding a new section to chapter 19.85
RCW; adding new sections to chapter 43.21C RCW; adding a new section
to
chapter 84.33 RCW; and adding new sections to chapter 76.13 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
{+ NEW SECTION. +} Sec. 1.
A new section is added to chapter
75.46 RCW and codified with the subchapter heading of "salmon recovery
planning in areas involving forest practices" to read as follows:
(1) The changes in laws and rules contemplated
by chapter . . .,
Laws of 1999 (this act), taken as a whole, constitute a comprehensive
and coordinated program to provide substantial and sufficient
contributions to salmon recovery and water quality enhancement
in areas
impacted by forest practices and are intended to fully satisfy
the
requirements of the endangered species act (16 U.S.C. Sec. 1531
et
seq.) with respect to incidental take of salmon and other aquatic
resources and the clean water act (33 U.S.C. Sec. 1251 et seq.)
with
respect to nonpoint source pollution attributable to forest practices.
(2) The legislature finds that coordination
is needed between the
laws relating to forestry in chapter 76.09 RCW and the state salmon
recovery strategy being developed under this chapter. The
coordination
should ensure that nonfederal forest lands are managed in ways
that
make appropriate contributions to the recovery of salmonid fish,
water
quality, and related environmental amenities while encouraging
continued investments in those lands for commercial forestry purposes.
Specifically, the legislature finds that forest practices rules
relating to water quality, salmon, certain other species of fish,
certain species of stream-associated amphibians, and their respective
habitats should be coordinated with the rules and policies relating
to
other land uses through the state-wide salmon recovery planning
process. The legislature further finds that this subchapter
is but one
part of a comprehensive salmon strategy as required in this chapter,
and this investment in salmon habitat will be of little value if
a
comprehensive state plan is not completed and fully implemented.
(3) The legislature finds that the forestry
industry, small
landowners, tribal governments, state and federal agencies, and
counties have worked diligently for nearly two years to reach agreement
on scientifically based changes to the forest practices rules,
set
forth in the forests and fish report to the forest practices board
and
the governor's salmon recovery team dated . . . . ., 1999, and
known as
the forests and fish report. The legislature further finds
that if
existing forest practices rules are amended as proposed in the
forests
and fish report, the resulting changes in forest practices (a)
will
lead to: (i) Fully functioning salmon habitat that is vital
to the
long-term recovery of salmon on more than sixty thousand miles
of
streams in this state; (ii) identification of forest roads contributing
to habitat degradation and corrective action to remedy those problems
to protect salmon habitat; (iii) increased protection of steep
and
unstable slopes; and (iv) the implementation of scientifically
based
adaptive management and monitoring processes for evaluating the
impacts
of forest practices on aquatic resources, as defined in RCW 76.09.020,
and a process for amending the forest practices rules to incorporate
new information as it becomes available; (b) will protect aquatic
resources to the maximum extent practicable consistent with maintaining
commercial forest management as an economically viable use of lands
suitable for that purpose; and (c) will avoid unnecessary regulatory
incentives to convert forest lands to other uses that would be
less
desirable for salmon recovery.
(4) The legislature recognizes that the
adoption of forest
practices rules consistent with the forests and fish report will
impose
substantial financial burdens on forest landowners which, if not
partially offset through other changes in the laws and rules governing
forestry, could lead to significantly reduced silvicultural investments
on nonfederal lands, deterioration in the quality, condition, and
amounts of forests on those lands, and long-term adverse effects
on
fish and wildlife habitat and other environmental amenities associated
with well managed forests. Moreover, as the benefits of the
proposed
revisions to the forest practices rules will benefit the general
public, fairness requires that these costs be shared with the general
public through (a) reductions in timber harvest taxes; (b) government
acquisition of certain forest lands in stream channel migration
zones;
and (c) a direct cost-sharing program for small landowners.
(5) As an integral part of implementing
the salmon recovery
strategy, chapter . . ., Laws of 1999 (this act) (a) provides direction
to the forest practices board, the department of natural resources,
and
the department of ecology with respect to the adoption, implementation,
and enforcement of rules relating to forest practices and the
protection of aquatic resources; (b) provides additional enforcement
tools to the department of natural resources to enforce the forest
practices rules; (c) reduces timber harvest taxes from five percent
to
four percent of the value of timber harvested; (d) provides for
the
acquisition by the state of forest lands within certain stream
channel
migration zones where timber harvest will not be allowed; (e) provides
for small landowners to be compensated for a portion of any
extraordinary economic losses attributable to the revisions to
the
forest practices rules required by chapter . . ., Laws of 1999
(this
act); and (f) amends other existing laws to aid in the implementation
of the recommendations set forth in the forests and fish report.
{+ NEW SECTION. +} Sec. 2.
A new section is added to chapter
76.09 RCW to read as follows:
The forest practices board is authorized
to adopt interim rules
amending the forest practices rules consistent with the forests
and
fish report. The interim rules may remain in effect until
permanent
amendments to the forest practices rules are adopted under normal
rule-
making procedures as required by chapter . . ., Laws of 1999 (this
act). The interim rules may address less than all the elements
of the
forests and fish report if the forest practices board determines
that
this is necessary because of the interim nature of the rules.
Adoption
of the interim rules does not require compliance with the procedural
requirements of the forest practices act, the administrative procedure
act, chapter 34.05 RCW, the small business economic impact provisions
of the regulatory fairness act, chapter 19.85 RCW, or the procedural
requirements of the state environmental protection act, chapter
43.21CRCW.
{+ NEW SECTION. +} Sec. 3.
A new section is added to chapter
34.05 RCW to read as follows:
The forest practices board is authorized
to adopt interim rules
amending the forest practices rules consistent with the final forests
and fish report to the forest practices board dated . . . . .,
1999.
The interim rules may remain in effect until permanent amendments
to
the forest practices rules are adopted under normal rule-making
procedures as required by chapter . . ., Laws of 1999 (this act).
The
interim rules may address less than all the elements of the forests
and
fish report if the forest practices board determines that this
is
necessary because of the interim nature of the rules. Adoption
of
interim rules does not require compliance with the procedural
requirements of this chapter.
{+ NEW SECTION. +} Sec. 4.
A new section is added to chapter
19.85 RCW to read as follows:
The forest practices board is authorized
to adopt interim rules
amending the forest practices rules consistent with the final forests
and fish report to the forest practices board dated . . . . .,
1999.
The interim rules may remain in effect until permanent amendments
to
the forest practices rules are adopted under normal rule-making
procedures as required by chapter . . ., Laws of 1999 (this act).
The
interim rules may address less than all the elements of the forests
and
fish report if the forest practices board determines that this
is
necessary because of the interim nature of the rules. Adoption
of the
interim rules does not require compliance with the procedural
requirements of this chapter.
{+ NEW SECTION. +} Sec. 5.
A new section is added to chapter
43.21C RCW to read as follows:
The forest practices board is authorized
to adopt interim rules
amending the forest practices rules to make the rules consistent
with
the final forests and fish report to the forest practices board
dated
. . . . ., 1999. The interim rules may remain in effect until
permanent amendments to the forest practices rules are adopted
under
normal rule-making procedures as required by chapter . . ., Laws
of
1999 (this act). The interim rules may address less than
all the
elements of the forests and fish report if the forest practices
board
determines that this is necessary because of the interim nature
of the
rules. Adoption of the interim rules does not require compliance
with
the procedural requirements of RCW 43.21C.030(2)(c).
Sec. 6. RCW 76.09.020 and 1974 ex.s.
c 137 s 2 are each amended to
read as follows: For purposes of this chapter:
(1) "Appeals board" (({- shall -})) mean{+
s +} the forest
practices appeals board created by RCW 76.09.210.
(2) {+ "Aquatic resources" includes water
quality, salmon, other
species of the vertebrate classes Cephalaspidomorphi and Osteichthyes
identified in the forests and fish report, the Columbia torrent
salamander (Rhyacotriton kezeri), the Cascade torrent salamander
(Rhyacotriton cascadae), the Olympic torrent salamander (Rhyacotriton
olympian), the Dunn's salamander (Plethodon dunni), the Van Dyke's
salamander (Plethodon vandyke), the tailed frog (Ascaphus truei),
and
their respective habitats.
(3) +} "Commissioner" (({- shall -}))
mean{+ s +} the commissioner
of public lands.
(({- (3) -})) {+ (4) +}"Contiguous"
(({- shall -})) mean{+ s +}
land adjoining or touching by common corner or otherwise.
Land having
common ownership divided by a road or other right of way shall
be
considered contiguous.
(({- (4) -})) {+ (5) +} "Conversion to
a use other than commercial
timber operation" (({- shall -})) mean{+ s +} a bona fide conversion
to
an active use which is incompatible with timber growing and as
may be
defined by forest practices (({- regulations -})) {+ rules +}.
(({- (5) -})) {+ (6) +} "Department" (({-
shall -})) mean{+ s +}
the department of natural resources.
(({- (6) -})) {+ (7) +} "Forest land"
(({- shall -})) mean{+ s +}
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.
(({- (7) -})) {+ (8) +} "Forest landowner"
(({- shall -})) mean{+
s +} 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 landowner"
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.
(({- (8) -})) {+ (9) +} "Forest practice"
(({- shall -})) mean{+ s
+} any activity conducted on or directly pertaining to forest land
and
relating to growing, harvesting, or processing timber, including
but
not limited to: (a) Road and trail construction;
(b) Harvesting, final and intermediate;
(c) Precommercial thinning;
(d) Reforestation;
(e) Fertilization;
(f) Prevention and suppression of diseases
and insects;
(g) Salvage of trees; and
(h) Brush control.
"Forest practice" shall not include preparatory work such as tree
marking, surveying and road flagging, and removal or harvesting
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.
(({- (9) -})) {+ (10) +} "Forest practices
(({- regulations" shall
-})) {+ rules" +} mean{+ s +} any rules (({- promulgated -})) {+
adopted +} pursuant to RCW 76.09.040.
(({- (10) -})) {+ (11) "Forests and fish
report" means the forests
and fish report to the board dated . . . . . ., 1999.
(12) +} "Application" (({- shall -}))
mean{+ s +} the application
required pursuant to RCW 76.09.050.
(({- (11) -})) {+ (13) +} "Operator" (({-
shall -})) mean{+ s +}
any person engaging in forest practices except an employee with
wages
as his {+ or her +} sole compensation.
(({- (12) -})) {+ (14) +} "Person" (({-
shall -})) mean{+ s +} any
individual, partnership, private, public, or municipal corporation,
county, the department or other state or local governmental entity,
or
association of individuals of whatever nature.
(({- (13) -})) {+ (15) +} "Public resources"
(({- shall -})) mean{+
s +} water, fish and wildlife, and in addition shall mean capital
improvements of the state or its political subdivisions.
(({- (14) -})) {+ (16) "Public safety"
means reducing the risk to
the public at large from the danger of snow avalanches, identified
in
consultation with the department of transportation or a local
government, landslides, or debris torrents caused or triggered
by
forest practices.
(17) +} "Timber" (({- shall -})) mean{+
s +} forest trees, standing
or down, of a commercial species, including Christmas trees.
(({- (15) -})) {+ (18) +} "Timber owner"
(({- shall -})) mean{+ s
+} any person having all or any part of the legal interest in timber.
Where such timber is subject to a contract of sale, "timber owner"
shall mean the contract purchaser.
(({- (16) -})) {+ (19) +} "Board" (({-
shall -})) mean{+ s +} the
forest practices board created in RCW 76.09.030.
{+ (20) "Unconfined avulsing channel migration
zone" means the area
within which the active channel of an unconfined avulsing stream
is
prone to move and where the movement would result in a potential
near-
term loss of riparian forest adjacent to the stream. Sizeable
islands
with productive timber may exist within the zone.
(21) "Unconfined avulsing stream" means
generally fifth order or
larger waters that experience abrupt shifts in channel location,
creating a complex flood plain characterized by extensive gravel
bars,
disturbance species of vegetation of variable age, numerous side
channels, wall-based channels, oxbow lakes, and wetland complexes.
Many of these streams have dikes and levees that may temporarily
or
permanently restrict channel movement. +}
{+ NEW SECTION. +} Sec. 7.
A new section is added to chapter
76.09 RCW to read as follows:
(1) It is the policy of the state that
the forest practices rules
pertaining to aquatic resources and public safety should be coordinated
and consistent with the forests and fish report, which report is
to be
integrated into the salmon recovery strategy adopted under chapter
75.46 RCW. The legislature intends for the board to use its
expertise
to adopt rules consistent with the forests and fish report.
(2) The board shall amend the forest practices
rules through its
normal rule-making processes to cause such rules to be consistent
with
the recommendations of the forests and fish report unless, following
the completion of its environmental and economic review and receipt
of
public comments, a super-majority of the board consisting of nine
or
more board members determines that a deviation from the recommendations
of the forests and fish report is necessary to prevent material
damage
to a public resource and can be adopted without jeopardizing the
economic viability of the timber industry and to accomplish the
purposes and policies stated in RCW 76.09.010. Final rules
to be
adopted under this subsection (2) shall be completed within twenty-four
months of the effective date of this section. The board should
consider the desirability of pursuing any environmental review
process
under chapter 43.21C RCW relating to the adoption of such final
rules
coincident with any review of a related proposal under the national
environmental policy act (42 U.S.C. Sec. 4321, et seq.).
To achieve
the policy set out in subsection (1) of this section, the rules
to be
adopted under this subsection (2) should be as specific as the
board
considers reasonably possible while also providing for alternate
plans
if, in response to site-specific physical features, an applicant
proposes to provide protection at least equal in overall effectiveness
by alternate means.
(3) After the board has adopted rules
to comply with subsection (2)
of this section, changes to those rules and any new rules covering
aquatic resources may be adopted by a majority of the board through
normal rule-making processes and in compliance with all applicable
laws
if the changes or new rules are consistent with recommendations
resulting from the scientifically based adaptive management process
established by a rule of the board consistent with the adaptive
management recommendations of the forests and fish report.
Any new
rules or changes need not be based upon the recommendations of
such an
adaptive management process if (a) consensus is not reached through
the
process after completion of all required dispute resolution processes;
(b) legislative appropriations for such a process are inadequate
as
determined in accordance with the forests and fish report; (c)
the
board is required to adopt or modify rules by the final order of
any
court having jurisdiction thereof; or (d) future state legislation
directs the board to adopt or modify the rules.
{+ NEW SECTION. +} Sec. 8.
A new section is added to chapter
84.33 RCW to read as follows:
Private forest landowners are entitled
to fair compensation for
lands and timber set aside for the protection of aquatic resources
under the forests and fish report, dated . . . . . ., 1999.
Sec. 9. RCW 84.33.081 and 1985 c
184 s 1 are each amended to read
as follows:
(1) On the last business day of the second
month of each calendar
quarter, the state treasurer shall distribute from the timber tax
distribution account to each county the amount of tax collected
on
behalf of each county under RCW 84.33.051, less each county's
proportionate share of {+ sixty-six percent of the +} appropriations
for collection and administration activities under RCW 84.33.051,
and
shall transfer to the state general fund the amount of tax collected
on
behalf of the state under RCW 84.33.041, less (({- the state's
proportionate share -})) {+ thirty-four percent +} of {+ the +}
appropriations for collection and administration activities under
RCW
84.33.041. The county treasurer shall deposit moneys received
under
this section in a county timber tax account which shall be established
by each county. Following receipt of moneys under this section,
the
county treasurer shall make distributions from any moneys available
in
the county timber tax account to taxing districts in the county,
except
the state, under subsections (2) through (4) of this section.
(2) From moneys available, there first
shall be a distribution to
each taxing district having debt service payments due during the
calendar year, based upon bonds issued under authority of a vote
of the
people conducted pursuant to RCW 84.52.056 and based upon excess
levies
for a capital project fund authorized pursuant to RCW 84.52.053,
of an
amount equal to the timber assessed value of the district multiplied
by
the tax rate levied for payment of the debt service and capital
projects: PROVIDED, That in respect to levies for a debt
service or
capital project fund authorized before July 1, 1984, the amount
allocated shall not be less than an amount equal to the same percentage
of such debt service or capital project fund represented by timber
tax
allocations to such payments in calendar year 1984. Distribution
under
this subsection (2) shall be used only for debt service and capital
projects payments. The distribution under this subsection
shall be
made as follows: One-half of such amount shall be distributed
in the
first quarter of the year and one-half shall be distributed in
the
third quarter of the year.
(3) From the moneys remaining after the
distributions under
subsection (2) of this section, the county treasurer shall distribute
to each school district an amount equal to one-half of the timber
assessed value of the district or eighty percent of the timber
roll of
such district in calendar year 1983 as determined under this chapter,
whichever is greater, multiplied by the tax rate, if any, levied
by the
district under RCW 84.52.052 or 84.52.053 for purposes other than
debt
service payments and capital projects supported under subsection
(2) of
this section. The distribution under this subsection shall
be made as
follows: One-half of such amount shall be distributed in
the first
quarter of the year and one-half shall be distributed in the third
quarter of the year.
(4) After the distributions directed under
subsections (2) and (3)
of this section, if any, each taxing district shall receive an
amount
equal to the timber assessed value of the district multiplied by
the
tax rate, if any, levied as a regular levy of the district or as
a
special levy not included in subsection (2) or (3) of this section.
(5) If there are insufficient moneys in
the county timber tax
account to make full distribution under subsection (4) of this
section,
the county treasurer shall multiply the amount to be distributed
to
each taxing district under that subsection by a fraction.
The
numerator of the fraction is the county timber tax account balance
before making the distribution under that subsection. The
denominator
of the fraction is the account balance which would be required
to make
full distribution under that subsection.
(6) After making the distributions under
subsections (2) through
(4) of this section in the full amount indicated for the calendar
year,
the county treasurer shall place any excess revenue up to twenty
percent of the total distributions made for the year under subsections
(2) through (4) of this section in a reserve status until the beginning
of the next calendar year. Any moneys remaining in the county
timber
tax account after this amount is placed in reserve shall be distributed
to each taxing district in the county in the same proportions as
the
distributions made under subsection (4) of this section.
{+ NEW SECTION. +} Sec. 10.
A new section is added to chapter
76.13 RCW to read as follows:
(1) The legislature finds that increasing
regulatory requirements
continue to diminish the economic viability of small forest landowners.
The concerns set forth in section 1 of this act about the importance
of
sustaining forestry as a viable land use are particularly applicable
to
small landowners because of the location of their holdings, the
expected complexity of the regulatory requirements, and the need
for
significant technical expertise not readily available to small
landowners. The further reduction in harvestable timber owned
by small
forest landowners as a result of the rules to be adopted under
sections
2 and 7 of this act will further erode small landowners' economic
viability and willingness or ability to keep the lands in forestry
use
and, therefore, reduce the amount of habitat available for salmon
recovery and conservation of other aquatic resources, as defined
in RCW
76.09.020. (2) The legislature finds that
the concerns identified in
subsection (1) of this section should be addressed by establishing
within the department of natural resources a small forest landowner
office that shall be a resource and focal point for small forest
landowner concerns and policies. The legislature further
finds that a
forestry riparian easement program should be established to acquire
easements from small landowners along riparian and other areas
of value
to the state for protection of aquatic resources.
Sec. 11. RCW 76.13.010 and 1991
c 27 s 3 are each amended to read
as follows:
Unless the context clearly requires otherwise,
the definitions in
this section apply (({- throughout this chapter -})) {+ to RCW
76.13.005, 76.13.007, 76.13.020, and 76.13.030 +}.
(1) "Department" means the department
of natural resources.
(2) "Landowner" means an individual, partnership,
private, public
or municipal corporation, Indian tribe, state agency, county, or
local
government entity, educational institution, or association of
individuals of whatever nature that own nonindustrial forests andwoodlands.
(3) "Nonindustrial forests and woodlands"
are those suburban
acreages and rural lands supporting or capable of supporting trees
and
other flora and fauna associated with a forest ecosystem, comprised
of
total individual land ownerships of less than five thousand acres
and
not directly associated with wood processing or handling facilities.
(4) "Stewardship" means managing by caring
for, promoting,
protecting, renewing, or reestablishing or both, forests and associated
resources for the benefit of the landowner, the natural resources
and
the citizens of Washington state, in accordance with each landowner's
objectives, best management practices, and legal requirements.
(5) "Cooperating organization" means federal,
state, and local
agencies, colleges and universities, landowner assistance
organizations, consultants, forest resource-related industries,
and
environmental organizations which promote and maintain programs
designed to provide information and technical assistance services
to
nonindustrial forest and woodland owners.
{+ NEW SECTION. +} Sec. 12.
A new section is added to chapter
76.13 RCW to read as follows:
(1) The department of natural resources
shall establish and
maintain a small forest landowner office. The small forest
landowner
office shall be a resource and focal point for small forest landowner
concerns and policies, and shall have significant expertise regarding
the management of small forest holdings, governmental programs
applicable to such holdings, and the forestry riparian easementprogram.
(2) The small forest landowner office
shall administer the
provisions of the forestry riparian easement program created under
section 13 of this act. With respect to that program, the
office shall
have the authority to contract with private consultants that the
office
finds qualified to perform timber cruises of forestry riparianeasements.
(3) An advisory committee is established
to assist the small forest
landowner office in developing policy and recommending rules to
the
forest practices board. The advisory committee shall consist
at a
minimum of five persons, and shall include representatives of natural
resource agencies and small forest landowners. The committee
members
shall be appointed by the governor based on recommendations of
the
identified authors of the forests and fish report, defined in RCW
76.09.020. The small forest landowner office shall review
draft rules
or rule concepts with the committee prior to recommending such
rules to
the forest practices board. The office shall reimburse nongovernmental
committee members for reasonable expenses associated with attending
committee meetings as provided in RCW 43.03.050 and 43.03.060.
{+ NEW SECTION. +} Sec. 13.
A new section is added to chapter
76.13 RCW to read as follows:
(1) The legislature finds that the state
should acquire easements
along riparian and other sensitive aquatic areas from small forest
landowners willing to sell such easements to the state provided
that
the state will not be required to acquire such easements if they
are
subject to unacceptable liabilities. The legislature therefore
establishes a forestry riparian easement program.
(2) The definitions in this subsection
apply throughout this
section and sections 10 and 12 of this act unless the context clearly
requires otherwise.
(a) "Forestry riparian easement" means
an easement covering
qualifying timber granted voluntarily to the state by a small forestlandowner.
(b) "Qualifying timber" means those trees
covered by a forest
practices application that the small forest landowner is required
to
leave unharvested under the rules adopted under sections 2 and
7 of
this act or that is made uneconomic to harvest by those rules,
and for
which the small landowner is willing to grant the state a forestry
riparian easement. "Qualifying timber" is timber within or
bordering
a commercially reasonable harvest unit as determined under rules
adopted by the forest practices board.
(c) "Small forest landowner" means a landowner
meeting all of the
following characteristics: (i) A forest landowner as defined
in RCW
76.09.020 whose interest in the land and timber is in fee or who
has
rights to the timber to be included in the forestry riparian easement
that extend at least fifty years from the date the forest practices
application associated with the easement is submitted; (ii) an
entity
that has harvested from its own lands in this state during the
three
years prior to the year of application an average timber volume
that
would qualify the owner as a small timber harvester under RCW
84.33.073(1); and (iii) an entity that certifies at the time of
application that it does not expect to harvest from its own lands
more
than the volume allowed by RCW 84.33.073(1) during the ten years
following application. If a landowner's prior three-year
average
harvest exceeds the limit of RCW 84.33.073(1), or the landowner
expects
to exceed this limit during the ten years following application,
and
that landowner establishes to the department of natural resources'
reasonable satisfaction that the harvest limits were or will be
exceeded to raise funds to pay estate taxes or equally compelling
and
unexpected obligations such as court-ordered judgments or extraordinary
medical expenses, the landowner shall be deemed to be a small forestlandowner.
For purposes of determining whether a
person qualifies as a small
forest landowner, the small forest landowner office, created in
section
12 of this act, shall evaluate the landowner under this definition
as
of the date that the forest practices application is submitted
with
which the forestry riparian easement is associated. A small
forest
landowner can include an individual, partnership, corporate, or
other
nongovernmental legal entity. If a landowner grants timber
rights to
another entity for less than five years, the landowner may still
qualify as a small forest landowner under this section.
(d) "Completion of harvest" means that
the trees have been
harvested from an area and that further entry into that area by
mechanized logging or slash treating equipment is not expected.
(3) The department of natural resources
is authorized and directed
to accept and hold in the name of the state of Washington forestry
riparian easements granted by small forest landowners covering
qualifying timber and to pay compensation to such landowners in
accordance with subsections (6) and (7) of this section.
The
department of natural resources may not transfer the easements
to any
entity other than another state agency.
(4) Forestry riparian easements shall
be effective for fifty years
from the date the forest practices application associated with
the
qualifying timber is submitted to the department of natural resources,
unless the easement is terminated earlier by the department of
natural
resources voluntarily, based on a determination that termination
is in
the best interest of the state, or under the terms of a termination
clause in the easement.
(5) Forestry riparian easements shall
be restrictive only, and
shall preserve all lawful uses of the easement premises by the
landowner that are consistent with the terms of the easement and
the
requirement to protect riparian functions during the term of the
easement, subject to the restriction that the leave trees required
by
the rules to be left on the easement premises may not be cut during
the
term of the easement. No right of public access to or across,
or any
public use of the easement premises is created by this statute
or by
the easement. Forestry riparian easements shall not be deemed
to
trigger the compensating tax of or otherwise disqualify land from
being
taxed under chapter 84.33 or 84.34 RCW.
(6) Upon application of a small forest
landowner for a riparian
easement and the landowner's marking of the qualifying timber on
the
qualifying lands, the small forest landowner office shall determine
the
compensation to be offered to the small landowner as provided for
in
this section. The legislature recognizes that there is not
readily
available market transaction evidence of value for easements of
this
nature, and thus establishes the following methodology to ascertain
the
value for forestry riparian easements. Values so determined
shall not
be considered competent evidence of value for any other purpose.
The small forest landowner office shall
establish the volume of the
qualifying timber. Based on that volume and using data obtained
or
maintained by the department of revenue under RCW 84.33.074 and
84.33.091, the small forest landowner office shall attempt to determine
the fair market value of the qualifying timber as of the date the
forest practices application associated with the qualifying timber
was
submitted. If, under the forest practices rules adopted under
chapter. . ., Laws of 1999 (this act), some qualifying timber may
be
removed prior to the expiration of the fifty-year term of the easement,
the small forest landowner office shall apply a reduced compensation
factor to ascertain the value of those trees based on the proportional
economic value, considering income and growth, lost to the landowner.
(7) Except as provided in subsection (8)
of this section, the small
forest landowner office shall, subject to available funding, offer
compensation to the small forest landowner in the amount of fifty
percent of the value determined in subsection (6) of this section.
If
the landowner accepts the offer, the department of natural resources
shall pay the compensation promptly upon (a) completion of harvest
in
the area covered by the forestry riparian easement; (b) verification
that there has been compliance with the rules requiring leave trees
in
the easement area; and (c) execution and delivery of the easement
to
the department of natural resources. Upon payment of compensation,
the
department of natural resources may record the easement.
(8) With respect to forest practices applications
that are subject
to high regulatory impacts from the rules adopted under sections
2 and
7 of this act, the compensation to be offered will be increased
by an
additional fifty percent of the value of that portion of the area
included in buffers or special management zones established under
the
rules that exceeds the high impact threshold established by the
small
forest landowner office. For these purposes, the small forest
landowner office shall apply the average value of all qualified
timber
per acre to the acreage that exceeds the threshold for that forest
practices application. The threshold acreage shall be set
by the small
forest landowner office as the average number of acres included
in
buffers and special management zones as determined by the department
of
natural resources during the analysis done under the regulatory
fairness act, chapter 19.85 RCW. Separate percentage thresholds
shall
be established for western and eastern Washington.
(9) The forest practices board shall adopt
rules under the
administrative procedure act, chapter 34.05 RCW, to implement the
forestry riparian easement program, including the following:
(a) A standard version or versions of
all documents necessary or
advisable to create the forestry riparian easements as provided
for in
this section; (b) Standards for descriptions
of the easement premises with a
degree of precision that is reasonable in relation to the valuesinvolved;
(c) Methods and standards for cruises
and valuation of forestry
riparian easements for purposes of establishing the compensation;
(d) A method to determine that a forest
practice application
involves a commercially reasonable harvest;
(e) A method to address blowdown of qualified
timber falling
outside the easement premises;
(f) A formula for sharing of proceeds
in relation to the
acquisition of qualified timber covered by an easement through
the
exercise or threats of eminent domain by a federal or state agency
with
eminent domain authority, based on the present value of the department
of natural resources' and the landowner's relative interests in
the
qualified timber; (g) High impact regulatory
thresholds;
(h) A method to determine timber that
is qualifying timber because
it is rendered uneconomic to harvest by the rules adopted under
sections 2 and 7 of this act; and
(i) A method for internal department of
natural resources review of
small landowner office compensation decisions under subsection
(7) of
this section.
(10)(a) The small forest landowner office
account is created in the
state treasury. All receipts from appropriations, federal
grants, and
gifts from private organizations and individuals must be deposited
into
the account. Moneys in the account may be spent only after
appropriation. Expenditures from the account may be used
only for the
operation of the small forest landowner office.
(b) The easement purchase account is created
in the state treasury.
All receipts from appropriations, federal grants, and gifts from
private organizations and individuals must be deposited into the
account. Moneys in the account may be spent only after appropriation.
Expenditures from the account may be used only for purchase of
easements under this section.
Sec. 14. RCW 76.42.060 and 1973
c 136 s 7 are each amended to read
as follows:
It shall be unlawful to dispose of wood
debris by depositing such
material into any of the navigable waters of this state, except
as
authorized by law including any discharge or deposit allowed to
be made
under and in compliance with chapter 90.48 RCW and any rules (({-
or
regulations -})) duly (({- promulgated -})) {+ adopted +} thereunder
{+
or any deposit allowed to be made under and in compliance with
chapter
76.09 or 75.46 RCW and any rules duly adopted under those chapters
+}.
Violation of this section shall be a misdemeanor.
Sec. 15. RCW 76.09.330 and 1992
c 52 s 5 are each amended to read
as follows:
The legislature hereby finds and declares
that riparian ecosystems
on forest lands in addition to containing valuable timber resources,
provide benefits for wildlife, fish, and water quality. {+
The
legislature further finds and declares that leaving riparian areas
unharvested and leaving snags and green trees for large woody debris
recruitment for streams and rivers provides public benefits including
but not limited to benefits for threatened and endangered salmonids,
other fish, amphibians, wildlife, and water quality enhancement.
+}
The legislature further finds and declares that leaving upland
areas
unharvested for wildlife and leaving snags and green trees for
future
snag recruitment provides benefits for wildlife. Forest landowners
may
be required to leave trees standing in riparian and upland areas
to
benefit public resources. It is recognized that these trees
may blow
down or fall into streams and that organic debris may be allowed
to
remain in streams. This is beneficial to riparian dependent
and other
wildlife species. {+ Further, it is recognized that trees
may blow
down, fall onto, or otherwise cause damage or injury to public
improvements, private property, and persons. Notwithstanding
any
statutory provision, rule, or common law doctrine to the contrary,
t
+}he landowner {+ and the department +} shall not be held liable
for
any injury or damages resulting from these actions, including but
not
limited to wildfire, erosion, flooding, {+ personal injury, property
damage, damage to public improvements, +} and other {+ injury or
+}
damages {+ of any kind or character +} resulting from the trees
beingleft.
{+ NEW SECTION. +} Sec. 16.
A new section is added to chapter
76.09 RCW to read as follows:
Prior to the sale or transfer of land
or perpetual timber rights
subject to continuing forest land obligations under the forest
practices rules adopted under section 7 of this act, as specifically
identified in the forests and fish report the seller shall notify
the
buyer of the existence and nature of such a continuing obligation
and
the buyer shall sign a notice of continuing forest land obligation
indicating the buyer's knowledge thereof. The notice shall
be on a
form prepared by the department and shall be sent to the department
by
the seller at the time of sale or transfer of the land or perpetual
timber rights and retained by the department. If the seller
fails to
notify the buyer about the continuing forest land obligation, the
seller shall pay the buyer's costs related to such continuing forest
land obligation, including all legal costs and reasonable attorneys'
fees, incurred by the buyer in enforcing the continuing forest
land
obligation against the seller. Failure by the seller to send
the
required notice to the department at the time of sale shall be
prima
facie evidence, in an action by the buyer against the seller for
costs
related to the continuing forest land obligation, that the seller
did
not notify the buyer of the continuing forest land obligation prior
tosale.
Sec. 17. RCW 76.09.140 and 1993
c 482 s 1 are each amended to read
as follows: (1) The department of natural
resources may take any necessary
action to enforce any final order or final decision, and may disapprove
(({- for up to one year -})) any forest practices application or
notification submitted by any person who has failed to comply with
a
final order or final decision or has failed to pay any civil penalties
as provided in RCW 76.09.170{+ , for up to one year from the issuance
of a notice of intent to disapprove notifications and applications
under this section or until the violator pays all outstanding civil
penalties and complies with all validly issued and outstanding
notices
to comply and stop work orders, whichever is longer +}. For
purposes
of chapter 482, Laws of 1993, the terms "final order" and "final
decision" shall mean the same as set forth in RCW 76.09.080, 76.09.090,
and 76.09.110. The department shall provide written notice
of its
intent to disapprove an application or notification under this
subsection. The department shall forward copies of its notice
of
intent to disapprove to any affected landowner. The disapproval
period
shall run from thirty days following the date of actual notice
or when
all administrative and judicial appellate processes, if any, have
been
exhausted. Any person provided the notice may seek review
from the
appeals board by filing a request for review within thirty days
of the
date of the notice of intent. {+ While the notice of intent
to
disapprove is in effect, the violator may not serve as a person
in
charge of, be employed by, manage, or otherwise participate to
any
degree in forest practices. +}
(2) On request of the department, the
attorney general may take
action necessary to enforce this chapter, including, but not limited
to, seeking penalties, {+ seeking interests, costs, and attorneys'
fees, +} enforcing final orders or decisions, and seeking civil
injunctions, show cause orders, or contempt orders.
(3) A county may bring injunctive, declaratory,
or other actions
for enforcement for forest practice activities within its jurisdiction
in the superior court as provided by law against the department,
the
forest landowner, timber owner or operator to enforce the forest
practice (({- regulations -})) {+ rules +} or any final order of
the
department, or the appeals board. No civil or criminal penalties
shall
be imposed for past actions or omissions if such actions or omissions
were conducted pursuant to an approval or directive of the department.
Injunctions, declaratory actions, or other actions for enforcement
under this subsection may not be commenced unless the department
fails
to take appropriate action after ten days written notice to the
department by the county of a violation of the forest practices
rules
or final orders of the department or the appeals board.
{+ (4)(a) If an operator or landowner
has three significant
violations within a three-year period, the department may require
that
he or she provide financial assurances prior to the conduct of
any
further forest practices. The department may deny an application
for
failure to submit financial assurances as required.
(b) "Significant violations" means operating
without an approved
forest practices application, other than an unintentional operation
in
connection with an approved application outside of the approved
boundary of such an application; operations in breach of the terms
of
an approved forest practices application where the operations cause
actual material damage to public resources; and the continuation
of
operations in breach of the terms of an effective stop work order
or
notice to comply.
(c) If financial assurances are required
by the department under
(a) of this subsection, they shall be submitted along with a forest
practices application. The financial assurances may be in
the form of
a bank letter of credit, a cash deposit, a savings account assignment,
a corporate surety bond executed in favor of the department, a
letter
of financial assurance, or any other form of assurance acceptable
to
the department. The department may refuse a financial assurance
that
is inadequate, in which case it shall deny the forest practicesapplication.
(d) The board shall establish by rule
a standardized formula for
determining the amount of financial assurance and a means to appeal
such processes. The formula shall reflect reasonable estimates
of the
amount of civil penalties, fees, and mitigation that may be required
under current law as a result of noncompliance with forest practices
rules and department directives in connection with a typical forest
practices operation and the risks to the state that the landowner
or
operator may be financially unable to pay the fines and fees or
to
complete the mitigation.
(e) Liability under the financial assurance
shall be maintained
until all forest practices notifications or applications issued
by the
department during the period the financial assurance is required
or
until these notifications or applications expire and all of the
landowner's or operator's obligations under the forest practices
act
and rules are completed to the satisfaction of the department,
including payment of any civil penalties and completion of any
required
mitigation work. Liability under the financial assurance
may be
released only upon written notification by the department.
Notification shall be given upon completion of compliance or acceptance
of a substitute financial assurance.
(f) Any interest or appreciation on the
financial assurance shall
be held by the department until performance is completed to its
satisfaction. At such time the interest and appreciation
shall be
remitted to the landowner or operator. However, interest
or
appreciation may be used by the department to effect performance
in the
event that the landowner or operator fails to comply with the forest
practices act and rules and the costs of civil penalties and mitigation
exceed the face value of the financial assurance. +}
Sec. 18. RCW 76.09.150 and 1974
ex.s. c 137 s 15 are each amended
to read as follows:
{+ (1) +} The department shall make inspections
of forest lands,
before, during and after the conducting of forest practices as
necessary for the purpose of (({- insuring -})) {+ ensuring +}
compliance with this chapter and the forest practice (({- regulations
-
})) {+ rules +} and to (({- insure -})) {+ ensure +} that no material
damage occurs to the natural resources of this state as a result
of
such practices.
{+ (2) +} Any duly authorized representative
of the department
shall have the right to enter upon forest land at any reasonable
time
to enforce the provisions of this chapter and the forest practices
(({-
regulations -})) {+ rules +}. {+ The department or
the department of
ecology may apply for an administrative inspection warrant to either
Thurston county superior court, or the superior court in the county
in
which the property is located. An administrative inspection
warrant
may be issued where:
(a) The department has attempted an inspection
of forest lands
under this chapter to ensure compliance with this chapter and the
forest practice rules or to ensure that no potential or actual
material
damage occurs to the natural resources of this state, and access
to all
or part of the forest lands has been actually or constructively
denied;or
(b) The department has reasonable cause
to believe that a violation
of this chapter or of rules adopted under this chapter is occurring
or
has occurred. (3) In connection with any
watershed analysis, any review of a
pending application by an identification team appointed by the
department, any compliance studies, any effectiveness monitoring,
or
other research that has been agreed to by a landowner, the department
may invite representatives of other agencies, tribes, and interest
groups to accompany a department representative and, at the landowner's
election, the landowner, on any such inspections. Reasonable
efforts
shall be made by the department to notify the landowner of the
persons
being invited onto the property and the purposes for which they
are
being invited. +}
Sec. 19. RCW 76.09.170 and 1993
c 482 s 2 are each amended to read
as follows: (1) Every person who violates
any provision of RCW 76.09.010
through 76.09.280 or of the forest practices rules, 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 every such violation.
Each and every such violation shall be a separate and distinct
offense.
In case of a failure to comply with a stop work order, every day's
continuance shall be a separate and distinct violation. 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 in this section.
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 or advisory committee created
by this
chapter for any act or omission in his or her duties in the
administration of this chapter or of any rule adopted under thischapter.
(2) The department shall develop and recommend
to the board a
penalty schedule to determine the amount to be imposed under this
section. The board shall adopt by rule, pursuant to chapter
34.05 RCW,
such penalty schedule to be effective no later than January 1,
1994.
The schedule shall be developed in consideration of the following:
(a) Previous violation history;
(b) Severity of the impact on public resources;
(c) Whether the violation of this chapter
or its rules wasintentional;
(d) Cooperation with the department;
(e) Repairability of the adverse effect
from the violation; 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 has
not
received substantial economic benefits from the violation.
(3) The penalty in this section 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. Within
fifteen
days after the notice is received, the person incurring the penalty
may
apply in writing to the department for the remission or mitigation
of
such penalty. Upon receipt of the application, that department
may
remit or mitigate the penalty upon whatever terms that department
in
its discretion deems proper, provided the department deems such
remission or mitigation to be in the best interests of carrying
out the
purposes of this chapter. The department shall have authority
to
ascertain the facts regarding all such applications in such reasonable
manner and under such rule as it may deem proper.
(4) Any person incurring a penalty under
this section may appeal
the penalty 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.
(5) 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 decision confirming
the
penalty in whole or in part.
(6) 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{+ , interests, costs, and attorneys' fees
+}. In
all such actions the procedure and rules of evidence shall be the
same
as an ordinary civil action except as otherwise in this chapter
provided. 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{+
,
interests, costs, and attorneys' fees +}.
(7) 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
and
the department may collect such amount in the same manner provided
in
chapter 60.04 RCW for mechanics' liens.
{+ (8) Any person incurring a penalty
imposed under this section is
also responsible for the payment of all costs and attorneys' fees
incurred in connection with the penalty and interest accruing on
the
unpaid penalty amount. +}
Sec. 20. RCW 76.09.040 and 1997
c 173 s 1 are each amended to read
as follows:
(1) Where necessary to accomplish the
purposes and policies stated
in RCW 76.09.010 {+ or when adopting rules under section 2 or 7
of this
act, to protect public safety +}, and to implement the provisions
of
this chapter, the board shall (({- promulgate -})) {+ adopt +}
forest
practices (({- regulations -})) {+ rules +} pursuant to chapter
34.05
RCW and in accordance with the procedures enumerated in this sectionthat:
(a) Establish minimum standards for forest
practices;
(b) Provide procedures for the voluntary
development of resource
management plans which may be adopted as an alternative to the
minimum
standards in (a) of this subsection if the plan is consistent with
the
purposes and policies stated in RCW 76.09.010 and the plan meets
or
exceeds the objectives of the minimum standards;
(c) Set forth necessary administrative
provisions; (({- and -}))
(d) Establish procedures for the collection
and administration of
forest practice fees as set forth by this chapter{+ ; and
(e) Allow for the development of watershed
analyses +}.
Forest practices (({- regulations -}))
{+ rules +} pertaining to
water quality protection shall be (({- promulgated individually
-})) {+
adopted +} by the board (({- and by the department of ecology -}))
after (({- they have reached -})) {+ reaching +} agreement {+ with
the
director of the department of ecology or the director's designee
on the
board +} with respect thereto. All other forest practices
(({-
regulations -})) {+ rules +} shall be (({- promulgated -})) {+
adopted
+} by the board. Forest practices (({-
regulations -})) {+ rules +} shall be
administered and enforced by either the department or the local
governmental entity as provided in this chapter. Such (({-
regulations
-})) {+ rules +} shall be (({- promulgated -})) {+ adopted +} and
administered so as to give consideration to all purposes and policies
set forth in RCW 76.09.010.
(2) The board shall prepare proposed forest
practices (({-
regulations -})) {+ rules +}. In addition to any forest practices
(({-
regulations -})) {+ rules +} relating to water quality protection
proposed by the board, the department of ecology (({- shall prepare
-
})) {+ may submit to the board +} proposed forest practices (({-
regulations -})) {+ rules +} relating to water quality protection.
Prior to initiating the rule making process,
the proposed (({-
regulations -})) {+ rules +} shall be submitted for review
and
comments to the department of fish and wildlife and to the counties
of
the state. After receipt of the proposed forest practices
(({-
regulations -})) {+ rules +}, the department of fish and wildlife
and
the counties of the state shall have thirty days in which to review
and
submit comments to the board, and to the department of ecology
with
respect to its proposed (({- regulations -})) {+ rules +} relating
to
water quality protection. After the expiration of such thirty
day
period the board and the department of ecology shall jointly hold
one
or more hearings on the proposed (({- regulations -})) {+ rules
+}
pursuant to chapter 34.05 RCW. At such hearing(s) any county
may
propose specific forest practices (({- regulations -})) {+ rules
+}
relating to problems existing within such county. The board
{+ may
adopt +} and the department of ecology may (({- adopt -})) {+ approve
+} such proposals if they find the proposals are consistent with
the
purposes and policies of this chapter.
{+ (3) The board shall establish by rule
a riparian open space
program that includes acquisition of a fee interest in, or at the
landowner's option, a conservation easement on lands within unconfined
avulsing channel migration zones. Once acquired, these lands
may be
held and managed by the department, transferred to another state
agency, transferred to an appropriate local government agency,
or
transferred to a private nonprofit nature conservation corporation,
as
defined in RCW 64.04.130, in fee or transfer of management obligation.
The board shall adopt rules governing the acquisition by the state
or
donation by the state of such interest in lands including the right
of
refusal if the lands are subject to unacceptable liabilities.
The
rules shall include definitions of qualifying lands, priorities
for
acquisition, and provide for the opportunity to transfer such lands
with limited warranties and with a description of boundaries that
does
not require full surveys where the cost of securing the surveys
would
be unreasonable in relation to the value of the lands conveyed.
The
rules shall provide for the management of the lands for ecological
protection or fisheries enhancement. Because there are few,
if any,
comparable sales of forest land within unconfined avulsing channel
migration zones, separate from the other lands or assets, these
lands
are likely to be extraordinarily difficult to appraise and the
cost of
a conventional appraisal often would be unreasonable in relation
to the
value of the land involved. Therefore, for the purposes of
voluntary
sales under this section, the legislature declares that these lands
are
presumed to have a value equal to: (a) The median value of
commercial
forest land under the land value tables used for property tax purposes
under RCW 84.33.120; plus (b) the cruised volume of any timber
located
within the channel migration zone that is twelve inches or larger
in
diameter breast height times the median value of timber of the
same
species in the tables used for timber harvest excise tax purposes
under
RCW 84.33.091.
(4) Subject to appropriations sufficient
to cover the cost of such
an acquisition program and the related costs of administering the
program, the department is directed to purchase a fee interest
or, at
the owner's option, a conservation easement in land that an owner
tenders for purchase; provided that such lands have been taxed
as
forest lands and are located within an unconfined avulsing channel
migration zone. Lands acquired under this section shall become
riparian open space. These acquisitions shall not be deemed
to trigger
the compensating tax of chapters 84.33 and 84.34 RCW.
(5) The riparian open space account is
created in the custody of
the state treasurer. All receipts from legislative appropriations,
federal grants, and gifts from private individuals or organizations
must be deposited into the account. Expenditures from the
account may
be used only for purchases of land under this section. Only
the
commissioner of public lands or the commissioner's designee may
authorize expenditures from the account. The account is subject
to
allotment procedures under chapter 43.88 RCW, but an appropriation
is
not required for expenditures.
(6) Instead of offering to sell interests
in qualifying lands,
owners may elect to donate the interests to the state. The
state shall
accept any such donation of qualifying lands.
(7) Any acquired interest in qualifying
lands by the state under
this section shall be managed as riparian open space. +}
Sec. 21. RCW 76.09.010 and 1993
c 443 s 1 are each amended to read
as follows:
(1) The legislature hereby finds and declares
that the forest land
resources are among the most valuable of all resources in the state;
that a viable forest products industry is of prime importance to
the
state's economy; that it is in the public interest for public and
private commercial forest lands to be managed consistent with sound
policies of natural resource protection; that coincident with
maintenance of a viable forest products industry, it is important
to
afford protection to forest soils, fisheries, wildlife, water quantity
and quality, air quality, recreation, and scenic beauty.
(2) The legislature further finds and
declares it to be in the
public interest of this state to create and maintain through the
adoption of this chapter a comprehensive state-wide system of laws
and
forest practices (({- regulations -})) {+ rules +} which will achieve
the following purposes and policies:
(a) Afford protection to, promote, foster
and encourage timber
growth, and require such minimum reforestation of commercial tree
species on forest lands as will reasonably utilize the timber growing
capacity of the soil following current timber harvest;
(b) Afford protection to forest soils
and public resources by
utilizing all reasonable methods of technology in conducting forestpractices;
(c) Recognize both the public and private
interest in the
profitable growing and harvesting of timber;
(d) Promote efficiency by permitting maximum
operating freedom
consistent with the other purposes and policies stated herein;
(e) Provide for regulation of forest practices
so as to avoid
unnecessary duplication in such (({- regulation -})) {+ rules +};
(f) Provide for interagency input and
intergovernmental and tribal
coordination and cooperation;
(g) Achieve compliance with all applicable
requirements of federal
and state law with respect to nonpoint sources of water pollution
from
forest practices;
(h) To consider reasonable land use planning
goals and concepts
contained in local comprehensive plans and zoning regulations;
(({- and-}))
(i) Foster cooperation among managers
of public resources, forest
landowners, Indian tribes and the citizens of the state{+ ; and
(j) Develop a watershed analysis system
that addresses the
cumulative effect of forest practices on, at a minimum, the public
resources of fish, water, and public capital improvements of the
state
and its political subdivisions +}.
(3) The legislature further finds and
declares that it is also in
the public interest of the state to encourage forest landowners
to
undertake corrective and remedial action to reduce the impact of
mass
earth movements and fluvial processes.
(4) The legislature further finds and
declares that it is in the
public interest that the applicants for state forest practice{+
s +}
permits should assist in paying for the cost of review and permitting
necessary for the environmental protection of these resources.
Sec. 22. RCW 76.09.080 and 1989
c 175 s 163 are each amended to
read as follows:
(1) The department shall have the authority
to serve upon an
operator a stop work order which shall be a final order of thedepartment
if:
(a) There is any violation of the provisions
of this chapter or the
forest practices (({- regulations -})) {+ rules +}; or
(b) There is a deviation from the approved
application; or
(c) Immediate action is necessary to prevent
continuation of or to
avoid material damage to a public resource {+ or to prevent threats
to
public safety +}. (2) The stop work order
shall set forth:
(a) The specific nature, extent, and time
of the violation,
deviation, damage, or potential damage;
(b) An order to stop all work connected
with the violation,
deviation, damage, or potential damage;
(c) The specific course of action needed
to correct such violation
or deviation or to prevent damage and to correct and/or compensate
for
damage to public resources which has resulted from any violation,
unauthorized deviation, or willful or negligent disregard for potential
damage to a public resource; and/or those courses of action necessary
to prevent continuing damage to public resources where the damage
is
resulting from the forest practice activities but has not resulted
from
any violation, unauthorized deviation, or negligence; and
(d) The right of the operator to a hearing
before the appealsboard.
The department shall immediately file
a copy of such order with the
appeals board and mail a copy thereof to the timber owner and forest
landowner at the addresses shown on the application. The
operator,
timber owner, or forest landowner may commence an appeal to the
appeals
board within fifteen days after service upon the operator.
If such
appeal is commenced, a hearing shall be held not more than twenty
days
after copies of the notice of appeal were filed with the appeals
board.
Such proceeding shall be an adjudicative proceeding within the
meaning
of chapter 34.05 RCW, the Administrative Procedure Act. The
operator
shall comply with the order of the department immediately upon
being
served, but the appeals board if requested shall have authority
to
continue or discontinue in whole or in part the order of the department
under such conditions as it may impose pending the outcome of theproceeding.
Sec. 23. RCW 76.09.090 and 1975
1st ex.s. c 200 s 6 are each
amended to read as follows:
If a violation, a deviation, material
damage or potential for
material damage to a public resource has occurred and the department
determines that a stop work order is unnecessary, then the department
shall issue and serve upon the operator or landowner a notice,
which
shall clearly set forth:
(1)(a) The specific nature, extent, and
time of failure to comply
with the approved application; or identifying the damage or potential
damage {+ or risks to public safety +}; and/or
(b) The relevant provisions of this chapter
or of the forest
practice{+ s +} (({- regulations -})) {+ rules +} relating thereto;
(2) The right of the operator or landowner
to a hearing before the
department; and
(3) The specific course of action ordered
by the department to be
followed by the operator to correct such failure to comply and
to
prevent, correct and/or compensate for material damage to public
resources {+ or public safety +} which resulted from any violation,
unauthorized deviation, or wil{+ l +}ful or negligent disregard
for
potential damage to a public resource {+ or to public safety +};
and/or
those courses of action necessary to prevent continuing damage
to
public resources {+ or public safety +} where the damage is resulting
from the forest practice activities but has not resulted from any
violation, unauthorized deviation, or negligence.
The department shall mail a copy thereof
to the forest landowner
and the timber owner at the addresses shown on the application,
showing
the date of service upon the operator. Such notice to comply
shall
become a final order of the department: PROVIDED, That no
direct
appeal to the appeals board will be allowed from such final order.
Such operator shall undertake the course of action so ordered by
the
department unless, within fifteen days after the date of service
of
such notice to comply, the operator, forest landowner, or timber
owner,
shall request the department in writing to schedule a hearing.
If so
requested, the department shall schedule a hearing on a date not
more
than twenty days after receiving such request. Within ten
days after
such hearing, the department shall issue a final order either
withdrawing its notice to comply or clearly setting forth the specific
course of action to be followed by such operator. Such operator
shall
undertake the course of action so ordered by the department unless
within thirty days after the date of such final order, the operator,
forest landowner, or timber owner appeals such final order to theappeals
board.
No person shall be under any obligation
under this section to
prevent, correct, or compensate for any damage to public resources
which occurs more than one year after the date of completion of
the
forest practices operations involved exclusive of reforestation,
unless
such forest practices were not conducted in accordance with forest
practices rules (({- and regulations -})): PROVIDED, That
this
provision shall not relieve the forest landowner from any obligation
to
comply with forest practices rules (({- and regulations -})) pertaining
to providing continuing road maintenance. No action to recover
damages
shall be taken under this section more than two years after the
date
the damage involved occurs.
Sec. 24. RCW 76.09.030 and 1995
c 399 s 207 are each amended to
read as follows:
(1) There is hereby created the forest
practices board of the state
of Washington as an agency of state government consisting of members
asfollows:
(a) The commissioner of public lands or
the commissioner'sdesignee;
(b) The director of the department of
community, trade, and
economic development or the director's designee;
(c) The director of the department of
agriculture or the director's
designee; (d) The director of the department
of ecology or the director's
designee; (e) {+ The director of the department
of fish and wildlife or the
director's designee. However, this member's service on the
board shall
be terminated automatically two years after the effective date
of this
section unless prior to that date, the legislature finds that the
department has made substantial progress toward integrating the
laws,
rules, and programs governing forest practices, chapter 76.09 RCW,
and
the laws, rules, and programs governing hydraulic projects, chapter
75.20 RCW. Substantial progress shall include, at a minimum,
recommendations to the legislature providing for closer integration
of
the existing rule-making authorities of the board and the department
of
fish and wildlife, and closer integration of the forest practices
and
hydraulics permitting processes, including exploring the potential
for
a consolidated permitting process. These recommendations
shall be
designed to resolve problems currently associated with the existing
dual regulatory and permitting processes;
(f) +} An elected member of a county legislative
authority
appointed by the governor: PROVIDED, That such member's service
on the
board shall be conditioned on the member's continued service as
an
elected county official; and
(({- (f) -})) {+ (g) +} Six members of
the general public appointed
by the governor, one of whom shall be an owner of not more than
five
hundred acres of forest land, and one of whom shall be an independent
logging contractor.
(2) The members of the initial board appointed
by the governor
shall be appointed so that the term of one member shall expire
December
31, 1975, the term of one member shall expire December 31, 1976,
the
term of one member shall expire December 31, 1977, the terms of
two
members shall expire December 31, 1978, and the terms of two members
shall expire December 31, 1979. Thereafter, each member shall
be
appointed for a term of four years. Vacancies on the board
shall be
filled in the same manner as the original appointments. Each
member of
the board shall continue in office until his or her successor is
appointed and qualified. The commissioner of public lands
or the
commissioner's designee shall be the chairman of the board.
(3) The board shall meet at such times
and places as shall be
designated by the chairman or upon the written request of the majority
of the board. The principal office of the board shall be
at the statecapital.
(4) Members of the board, except public
employees and elected
officials, shall be compensated in accordance with RCW 43.03.250.
Each
member shall be entitled to reimbursement for travel expenses incurred
in the performance of their duties as provided in RCW 43.03.050
and43.03.060.
(5) The board may employ such clerical
help and staff pursuant to
chapter 41.06 RCW as is necessary to carry out its duties.
Sec. 25. RCW 90.48.420 and 1975
1st ex.s. c 200 s 13 are each
amended to read as follows:
(1) The department of ecology, pursuant
to powers vested in it
previously by chapter 90.48 RCW and consistent with the policies
of
said chapter and RCW 90.54.020(3), shall be solely responsible
for
establishing water quality standards for waters of the state.
On or
before January 1, 1975, the department of ecology shall examine
existing (({- regulations -})) {+ rules +} containing water quality
standards and other applicable rules (({- and regulations -}))
of said
department pertaining to waters of the state affected by nonpoint
sources of pollution arising from forest practices and, when it
appears
appropriate to the department of ecology, modify said (({- regulations
-})) {+ rules +}. In any such examination or modification
the
department of ecology shall consider such factors, among others,
as
uses of the receiving waters, diffusion, down-stream cooling, and
reasonable transient and short-term effects resulting from forestpractices.
(({- Promulgation -})) {+ Adoption +}
of forest practices (({-
regulations -})) {+ rules pertaining to water quality +}
by (({- the
department of ecology and -})) the forest practices board(({- ,
-}))
shall be accomplished {+ after reaching agreement with the director
of
the department or the director's designee on the board. Adoption
shall
be accomplished +} so that compliance with such forest practice
(({-
regulations -})) {+ rules +} will achieve compliance with
water
pollution control laws.
(2) The department of ecology shall monitor
water quality to
determine whether revisions in such water quality standards or
revisions in such forest practices (({- regulations -})) {+ rules
+}
are necessary to accomplish the foregoing result, and either (({-
promulgate -})) {+ adopt +} appropriate revisions to such
water
quality standards or propose appropriate revisions to such forest
practices (({- regulations -})) {+ rules +} or both.
(3) Notwithstanding any other provisions
of chapter 90.48 RCW or of
the rules (({- and regulations promulgated -})) {+ adopted +}
thereunder, no permit system pertaining to nonpoint sources of
pollution arising from forest practices shall be authorized, and
no
civil or criminal penalties shall be imposed with respect to any
forest
practices conducted in full compliance with the applicable provisions
of RCW 76.09.010 through 76.09.280, forest practices (({- regulations
-
})) {+ rules +}, and any approvals or directives of the department
of
natural resources thereunder.
(4) Prior to the department of ecology
taking action under statutes
or (({- regulations -})) {+ rules +} relating to water quality,
regarding violations of water quality standards arising from forest
practices, the department of ecology shall notify the department
of
natural resources.
{+ NEW SECTION. +} Sec. 26.
A new section is added to chapter
43.21C RCW to read as follows:
Decisions pertaining to the following
kinds of actions under
chapter . . ., Laws of 1999 (this act) are not subject to any
procedural requirements implementing RCW 43.21C.030(2)(c):
(1)
Approval of forest road maintenance and abandonment plans under
chapter
76.09 RCW and RCW 75.20.100; (2) approval by the department of
natural
resources of future timber harvest schedules involving east-side
clear
cuts under rules implementing chapter 76.09 RCW; (3) acquisitions
of
forest lands in stream channel migration zones under section 9
of this
act; and (4) acquisitions of conservation easements pertaining
to
forest lands in riparian zones under section 13 of this act.
For
purposes of the department's threshold determination on a watershed
analysis, the department shall not make a determination of significance
unless the prescriptions themselves, compared to rules or prescriptions
in place prior to the analysis, will cause probable significant
adverse
impact on elements of the environment other than those addressed
in the
watershed analysis process.
Sec. 27. RCW 76.09.220 and 1997
c 290 s 5 and 1997 c 423 s 2 are
each reenacted and amended to read as follows:
(1) The appeals board shall operate on
either a part-time or a
full-time basis, as determined by the governor. If it is
determined
that the appeals board shall operate on a full-time basis, each
member
shall receive an annual salary to be determined by the governor.
If it
is determined that the appeals board shall operate on a part-time
basis, each member shall be compensated in accordance with RCW
43.03.250. The director of the environmental hearings office
shall
make the determination, required under RCW 43.03.250, as to what
statutorily prescribed duties, in addition to attendance at a hearing
or meeting of the board, shall merit compensation. This compensation
shall not exceed ten thousand dollars in a fiscal year. Each
member
shall receive reimbursement for travel expenses incurred in the
discharge of his {+ or her +} duties in accordance with the provisions
of RCW 43.03.050 and 43.03.060.
(2) The appeals board shall as soon as
practicable after the
initial appointment of the members thereof, meet and elect from
among
its members a chair, and shall at least biennially thereafter meet
and
elect or reelect a chair.
(3) The principal office of the appeals
board shall be at the state
capital, but it may sit or hold hearings at any other place in
the
state. A majority of the appeals board shall constitute a
quorum for
making orders or decisions, (({- promulgating -})) {+ adopting
+} rules
(({- and regulations -})) necessary for the conduct of its powers
and
duties, or transacting other official business, and may act though
one
position on the board be vacant. One or more members may
hold hearings
and take testimony to be reported for action by the board when
authorized by rule or order of the board. The appeals board
shall
perform all the powers and duties granted to it in this chapter
or as
otherwise provided by law.
(4) The appeals board shall make findings
of fact and prepare a
written decision in each case decided by it, and such findings
and
decision shall be effective upon being signed by two or more members
and upon being filed at the appeals board's principal office, and
shall
be open to public inspection at all reasonable times.
(5) The appeals board shall either publish
at its expense or make
arrangements with a publishing firm for the publication of those
of its
findings and decisions which are of general public interest, in
such
form as to assure reasonable distribution thereof.
(6) The appeals board shall maintain at
its principal office a
journal which shall contain all official actions of the appeals
board,
with the exception of findings and decisions, together with the
vote of
each member on such actions. The journal shall be available
for public
inspection at the principal office of the appeals board at allreasonable
times.
(7) The forest practices appeals board
shall have exclusive
jurisdiction to hear appeals arising from an action or determination
by
the department, and the department of fish and wildlife, and the
department of ecology with respect to management plans provided
for
under RCW 76.09.350.
(8)(a) Any person aggrieved by the approval
or disapproval of an
application to conduct a forest practice or the approval or disapproval
of any landscape plan or permit {+ or watershed analysis +} may
seek
review from the appeals board by filing a request for the same
within
thirty days of the approval or disapproval. Concurrently
with the
filing of any request for review with the board as provided in
this
section, the requestor shall file a copy of his or her request
with the
department and the attorney general. The attorney general
may
intervene to protect the public interest and ensure that the provisions
of this chapter are complied with.
(b) The review proceedings authorized
in (a) of this subsection are
subject to the provisions of chapter 34.05 RCW pertaining to procedures
in adjudicative proceedings.
{+ NEW SECTION. +} Sec. 28.
A new section is added to chapter
75.46 RCW under the subchapter heading "federal assurances related
to
forest practices conducted under the state salmon recovery strategy"
to
read as follows:
(1) The legislature finds that the forests
and fish report as
defined in RCW 76.09.020 was developed through extensive negotiations
with the federal agencies responsible for administering the endangered
species act and the clean water act. Chapter . . ., Laws
of 1999 (this
act) has been enacted on the assumption that the federal assurances
described in the forests and fish report will be obtained and that
forest practices conducted in accordance with chapter . . ., Laws
of
1999 (this act) and the rules adopted under chapter . . ., Laws
of 1999
(this act) will not be subject to additional regulations or
restrictions except as provided in the forests and fish report.
(2) The occurrence of any of the following
events shall constitute
a failure of assurances:
(a) Either (i) the national marine fisheries
service or the United
States fish and wildlife service fails to promulgate an effective
rule
under 16 U.S.C. Sec. 1533(d) covering each aquatic resource that
is
listed as threatened under the endangered species act within two
years
after the date on which the aquatic resource is so listed or, in
the
case of bull trout, within two years after the effective date of
this
section; or (ii) any such rule fails to permit any incidental take
that
would occur from the conduct of forest practices in compliance
with the
rules adopted under chapter . . ., Laws of 1999 (this act) or fails
to
confirm that such forest practices would not otherwise be in violation
of the endangered species act and the regulations promulgated under
that act. However, this subsection (2)(a) is not applicable
to any
aquatic resource covered by an incidental take permit described
in (c)
of this subsection;
(b) Either the national marine fisheries
service or the United
States fish and wildlife service shall promulgate an effective
rule
under 16 U.S.C. Sec. 1533(d) covering any aquatic resource that
would
preclude the conduct of forest practices consistent with the
prescriptions outlined in the forests and fish report. However,
this
subsection (2)(b) is not applicable to any aquatic resource covered
by
an incidental take permit described in (c) of this subsection;
(c) Either the secretary of the interior
or the secretary of
commerce fails to issue an acceptable incidental take permit under
16
U.S.C. Sec. 1539(a) covering all fish and wildlife species included
within aquatic resources on or before June 30, 2003. An acceptable
incidental take permit will (i) permit the incidental take, if
any, of
all fish and wildlife species included within aquatic resources
resulting from the conduct of forest practices in compliance with
the
prescriptions outlined in the forests and fish report; (ii) provide
protection to the state of Washington and its subdivisions and
to
landowners and operators; (iii) not require the commitment of
additional resources beyond those required to be committed under
the
forests and fish report; and (iv) provide "no-surprises" protection
as
described in 50 C.F.R. Parts 17 and 222 (1998);
(d) The environmental protection agency
or department of ecology
fails to provide the clean water act assurances described in appendix
M to the forests and fish report; or
(e) The assurances described in (a) through
(d) of this subsection
are reversed or otherwise rendered ineffective by subsequent federal
legislation or rulemaking or by final decision of any court of
competent jurisdiction.
Upon the occurrence of a failure of assurances,
any agency, tribe,
or other interested person including, without limitation, any forest
landowner, may provide written notice of the occurrence of such
failure
of assurances to the legislature and to the office of the governor.
Promptly upon receipt of such a notice, the governor shall review
relevant information and if he or she determines that a failure
of
assurances has occurred, the governor shall make such a finding
in a
written report with recommendations and deliver such report to
the
legislature. Upon notice of the occurrence of a failure of
assurances,
the legislature shall review chapter . . ., Laws of 1999 (this
act),
all rules adopted by the forest practices board, the department
of
ecology, or the department of fish and wildlife at any time after
January 1, 1999, that were adopted primarily for the protection
of one
or more aquatic resources and affect forest practices and the terms
of
the forests and fish report, and shall take such action, including
the
termination of funding or the modification of other statutes, as
it
deems appropriate.
(3) The governor may negotiate with federal
officials, directly or
through designated representatives, on behalf of the state and
its
agencies and subdivisions, to obtain assurances from federal agencies
to the effect that compliance with the forest practices rules as
amended under chapter . . ., Laws of 1999 (this act) and implementation
of the recommendations in the forests and fish report will satisfy
federal requirements under the endangered species act and the clean
water act and related regulations, including the negotiation of
a rule
adopted under section 4(d) of the endangered species act, entering
into
implementation agreements and receiving incidental take permits
under
section 10 of the endangered species act or entering into other
intergovernmental agreements.
--- END ---