Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-17-150.

     Title of Rule and Other Identifying Information: Small forest landowner long-term forest practices applications: The rule would authorize the department of natural resources to grant approvals of small forest landowners' forest practices applications for terms of up to fifteen years.

     Hearing Location(s): Ramada Spokane Airport, 8909 West Airport Drive, Spokane, (509) 838-5211, on Tuesday, August 7, 2007, at 6:00 p.m.; at the Grays Harbor Community College, 1620 Edward P. Smith Drive, Aberdeen, (360) 532-9020, on Thursday, August 9, 2007, at 6:00 p.m.; and at the Holiday Inn, 3105 Pine Street, Everett, (425) 993-2000, on Tuesday, August 14, 2007, at 6:00 p.m.

     Date of Intended Adoption: September 11, 2007.

     Submit Written Comments to: Patricia Anderson, Forest Practices Board Rules Coordinator, Department of Natural Resources, P.O. Box 47012, 1111 Washington Street S.E., Olympia, WA 98504-7012, e-mail forest.practicesboard@dnr.wa.gov, fax (360) 902-1428, by 5 p.m. on August 15, 2007.

     Assistance for Persons with Disabilities: Contact Forest Practices Division at (360) 902-1400 or TTY (360) 902-1125, by July 20, 2007.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The forest practices board proposes to amend forest practices rules (TITLE 222 WAC). The rules would authorize the department of natural resources to grant approvals of small forest landowners' forest practices applications for longer terms than are currently authorized - up to fifteen years. Currently applications are approved for a two-year term, or up to five years in the case of "multiyear permits." Landowners would submit these applications in two steps as described in new language in proposed WAC 222-20-016.

     This rule proposal also provides for an analysis of active small forest landowner long-term applications when the board is considering new rule making. The board recognizes that new forest practices rules for fish and wildlife species and habitat protection may be necessary during the longer effective term. Examples are when the forest practices adaptive management process (as described in existing WAC 222-12-045) results in recommendations for new rules, or when there are new listings of threatened or endangered species. The purpose of the analysis would be to determine how the new rule would affect the existing approved long-term applications, and determine whether to direct the department of natural resources to place new conditions on active approved applications.

     Reasons Supporting Proposal: The intent of allowing for longer terms is to provide landowners the flexibility to conduct management activities at the most advantageous times for their specific circumstances.

     Statutory Authority for Adoption: RCW 76.09.010 (2)(d), 76.09.040.

     Statute Being Implemented: Not applicable.

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

     Name of Proponent: Forest practices board, governmental.

     Name of Agency Personnel Responsible for Drafting: Gretchen Robinson, 1111 Washington Street S.E., Olympia, (360) 902-1705; Implementation: Gary Graves, 1111 Washington Street S.E., Olympia, (360) 902-1483; and Enforcement: Lenny Young, 1111 Washington Street S.E., Olympia, (360) 902-1744.

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

     The purpose of the cost-benefit analysis (CBA) is to:

     . . . (d) Determine that the probable benefits of the rule are greater than its probable costs, taking into account both the qualitative and quantitative benefits and costs and the specific directives of the statute being implemented;

     (e) Determine, after considering alternative versions of the rule . . . that the rule being adopted is the least burdensome alternative for those required to comply with it . . .

     A preliminary CBA must be completed before the rule is distributed for public review, and a final CBA must be available when the rule is adopted.

     The purpose of the small business economic impact statement (SBEIS) is to reduce ". . . the disproportionate impact of state administrative rules on small business . . ." An agency must complete an SBEIS prior to distributing a rule proposal for public comment.

     In order to facilitate flexibility in the timing of their forest practices activities, the forest practices board is considering forest practices application effective terms of up to fifteen years for small forest landowners as defined in WAC 222-21-010(13).

     Summary of Proposal Relevant to Economic Analysis¹: WAC 222-12-035 is a new WAC that authorizes the department of natural resources (DNR) to receive, and approve or disapprove long-term forest practices applications from small forest landowners for activities on any portion of their ownerships. Landowners who intend to convert land use to anything other than commercial timber production would not be eligible for this option. An approved long-term application would be effective for a term of three to fifteen years at the discretion of the landowner. As is true for applications with two to five year effective terms, long-term applications may include alternate plans. (A description of the alternate plan process can be seen in WAC 222-12-0401. The proposed rule making does not change the alternate plan process.)

     WAC 222-20-016 is a new WAC that describes a two-step application process, stipulates a five-day notice requirement prior to conducting approved activities, and describes circumstances under which approved long-term applications may be amended. When the forest practices board considers new or amended forest practices rules to achieve resource protection objectives, DNR, in consultation with the departments of ecology, fish and wildlife, and affected Indian tribes, will review and analyze the effects of existing approved long-term applications on the public resources the proposed rules are intended to protect. DNR will report the results to the board prior to rule adoption. The proposed rule is explicit that the board may (or may not) condition existing approved long-term applications to protect said resources. This is not a change from the board's current authority for approved applications with shorter terms.

     All other rule amendments in the proposal either support the new application option for small forest landowners or are included to provide clarity in existing rules and processes.

     This analysis evaluates the expected economic change from existing rules to the proposed rule. The proposal provides an alternative or option to small forest landowners not currently available. It does not place a new requirement on landowners, and does not impose additional costs on them.

     Preliminary Cost-Benefit Analysis: Costs for the user community, i.e., small forest landowners and agencies, are described separately below.

     Costs for Small Forest Landowners: There are two types of potential costs that should be considered for landowners who will utilize long-term application opportunity: Changes in cost of the application process and lost sales or revenue.

     Changes in Costs of Application Process: It is expected that landowners will include more lands in fifteen-year applications than they would in two to five year applications. More lands and longer-term planning will require more extensive and complex resource assessments and prescriptions for conducting activities. It is likely that these landowners will feel a greater need to hire one or more consultants for long-term planning. These additional costs, however, cannot be quantified or estimated for this analysis because of a variety of variables. Depending on a landowner's level of expertise and the natural resources involved in the application, the landowner may feel it's necessary to have expert opinions on, for example, water typing, appropriate riparian zone delineation, or slope stability. Landowners not willing to pay such costs will have the option to operate under the existing short-term rules if they determine that to do so is in their own best interest.

     The cost of submitting long-term applications should be no more than the sum of the costs of submitting individual applications under existing rule. Furthermore, there may be economies of scale, i.e., net savings, to submitting forest practices applications under one rather than multiple short-term applications. Regardless, any additional costs landowners incur under the long-term application option are not mandatory requirements.

     Lost Sales or Revenue: The proposed new rule does not modify or restrict a landowner's ability to harvest and therefore is not expected to have a negative impact on sales or revenues. Furthermore, income potential may be greater because of the additional flexibility afforded to landowners in the timing of conducting activities. This should allow the landowner to take advantage of changes in market conditions.

     Costs for Agencies: DNR, the department of ecology (DOE) and the department of fish and wildlife (DFW) will have additional program development and training costs in the startup phases of this program. The legislature has appropriated approximately $2 million for fiscal years 2007-2009 for program development, coordination, outreach, and training activities targeting regulatory staff and landowners.

     For routine application review there may initially be higher costs in staff time and travel. The application review process is divided into two steps: Review of the resource assessment and review of the management strategies proposed by the landowner. While reviewing the resource assessment, DNR, in consultation with DOE, DFW and affected tribes, will ensure all resources are appropriately identified. Also, some applications may include alternate plans which require interdisciplinary (ID) team review including representatives from these entities. While an influx of long-term applications is expected initially after the rule is adopted, it is unknown how many and for how long. Regardless, any higher costs for regulatory and reviewing agencies in the short-term probably won't, in the long-term, exceed the sum of the costs of reviewing individual short-term applications and alternate plans under existing rule.

     The proposal also includes an analysis prior to the board adopting new or amended rules. It directs DNR, in consultation with DOE, DFW and affected tribes, to review and analyze the effects of existing approved long-term applications on the public resources the proposed new forest practices rules are designed to protect. This analysis will result in additional staff time during the rule-making process. If the board determines that approved long-term applications must be conditioned to protect resources, additional DNR staff time will be required to notify landowners in writing of those conditions.

     Expected Benefit of Proposal: The primary benefit from this proposal is the increased flexibility available to landowners by allowing more time for responses to favorable market or other conditions. This flexibility should result in reduced cost and increased benefit to landowners.

     The proposed new rule does not reduce the protection to public resources and therefore is not expected to impact the public benefits provided by those resources.

     Least Burdensome Alternative: RCW 34.05.328 [(5)](e) instructs agencies to determine in a cost-benefit analysis, after considering alternative versions of the rule, that the rule being adopted is the least burdensome alternative for those required to comply with it and that it will achieve the general goals and specific objectives of the statute that the rule implements. In addition, the Forest Practices Act states that the forest practices rules must "promote efficiency by permitting maximum operating freedom consistent with the other purposes and policies (in the rules) . . ." (RCW 76.09.010 (2)(d)).

     The purpose of the proposed rule is to reduce a small forest landowner's burden by reducing frequency of paper work, and increasing flexibility to conduct activities when market or other conditions are favorable. Alternatives to this approach could be to not provide longer application terms, or to restrict the terms to fewer than fifteen years.

     The small forest landowner user group has identified the shorter application terms of the existing rules as one of many disincentives to continuing forest management rather than selling their forest lands for other uses. The forest practices board decided to provide this opportunity as an incentive to this group. The small forest landowners have expressed that fifteen years is desirable for long-term planning. The board has agreed to the fifteen-year term for the rule proposal.

     As stated above, this rule would result in additional short-term costs to the state for program development, coordination and training, of which the legislature will have provided approximately $2 million by 2009. The initial increased costs to landowners for long-term planning, and to regulatory and reviewing agencies for application review are unknown. However, over time these costs should not exceed the sum of the costs of planning for or reviewing individual short-term applications under existing rule.

     The proposed rules were developed in collaborative discussions which included affected landowners, regulatory agencies, and tribes. Based on the nature of the collaborative rule development process, and the board's intent to achieve the goal of decreasing the regulatory burden for small forest landowners, it is reasonable to conclude that the proposal is the desired, and "least burdensome" alternative for those required to comply with the new rule, that will achieve the general goals and specific objectives set by the forest practices board.

     Small Business Economic Impact Statement: The legislative intent of the Regulatory Fairness Act is to reduce "the disproportionate impact of state administrative rules on small business" (RCW 19.85.011). The concern is that rules that require reporting or other fixed compliance costs will have a disproportionate impact on small firms.

     In this case, the cost to the business is related to the land ownership rather than the business size. The law defines "small business" as one having less than fifty employees, but there is no readily available information on the ownership of forest lands potentially impacted by the proposed rule. One useful designation for which information on ownership patterns is known is "small forest landowner," defined in the forest practices rules as one who harvests from their land an average of less than two million board feet per year.³ Although there are small businesses that own large acreages of forest land in Washington state, it is believed that there is a high correlation between small businesses and small forest landowners.

     The possible costs to small business, i.e., small forest landowners, have been described above in the cost-benefit analysis. It is reasonable to conclude that the rule proposal does not adversely impact small businesses because it provides added flexibility to small landowners when it is in their self-interest, and it does not impose a mandatory requirement on small landowners.

     1. Costs of Proposal: The proposed rule requires program development, coordination, training and additional analysis by DNR, other state agencies, and affected tribes. The cost of program development, coordination, and training will be approximately $2 million. No attempt was made to determine the specific magnitude of the cost of additional analysis, but it is not believed to be significant. It is also reasonable to conclude that the rule proposal does not adversely impact landowners because it provides added flexibility to small landowners when it is in their self-interest, and it does not impose a mandatory requirement on landowners.

     2. Benefits of Proposal: The primary benefit of the proposal is the increased flexibility for small forest landowners. It is anticipated that this flexibility should reduce costs to landowners and has the potential to increase revenues, although no attempt was made to analyze the magnitude [of] these benefits.

     3. Comparison of Benefits and Cost of Proposal: While the probable benefits associated with the proposed rules are not quantifiable, the impact on landowners is expected to be positive. The rule adds an alternative for small forest landowners which they will only exercise when it is in their own best interest.

     Most of the identified new cost, approximately $2 million, would be in program development, coordination and training. Most other costs are in added staff time and travel for regulatory and reviewing agencies due to a possible increase in application review. However, any higher costs in the short-term probably will not exceed the sum of the costs for these activities in the long-term.

     Based on this analysis it is reasonable to conclude that the expected benefits of the proposed rules are greater than the expected costs.

     4. Least Burdensome Alternative: Based on the nature of the collaborative rule development process, and the forest practices board's intent to achieve the goal of decreasing the regulatory burden for small forest landowners, it is reasonable to conclude that the proposal is the desired, "least burdensome" alternative for those required to comply with the new rule, and that will achieve the general goals and specific objectives set by the forest practices board.

     5. Small Businesses Impact: Small businesses are not expected to be disproportionately impacted as a result of the proposal than are businesses as a whole. The impact is expected to be positive because it provides added flexibility to small forest landowners when it is in their self-interest, and it does not impose a mandatory requirement on landowners.

¹ This summary is provided for the convenience of the reader and should not be relied upon as a complete list of all changes.

[No footnote 2 is supplied by agency.]

³ For a full definition, see WAC 222-21-0010(13).

     A copy of the statement may be obtained by contacting Gretchen Robinson, Department of Natural Resources, P.O. Box 47012, 1111 Washington Street S.E., Olympia, WA 98504-7012, phone (360) 902-1705, fax (360) 902-1428, e-mail gretchen.robinson@dnr.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Gretchen Robinson, Department of Natural Resources, P.O. Box 47012, 1111 Washington Street S.E., Olympia, WA 98504-7012, phone (360) 902-1705, fax (360) 902-1428, e-mail gretchen.robinson@dnr.wa.gov.

June 27, 2007

Victoria Christiansen

Chairman

OTS-9825.2

AMENDATORY SECTION(Amending WSR 06-11-112, filed 5/18/06, effective 6/18/06)

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

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

     (3) Except as provided in subpart (4) below, applications and notifications shall be signed by the landowner, the timber owner and the operator, or the operator and accompanied by a consent form signed by the timber owner and the landowner. A consent form may be another document if it is signed by the landowner(s) and it contains a statement acknowledging that he/she is familiar with the Forest Practices Act, including the provisions dealing with conversion to another use (RCW 76.09.060(3)).

     (4) In lieu of a landowner's signature, where the timber rights have been transferred by deed to a perpetual owner who is different from the forest landowner, the owner of perpetual timber rights may sign a forest practices application or notification for operations not converting to another use and the statement of intent not to convert for a set period of time. The holder of perpetual timber rights shall serve the signed forest practices application or notification and the signed statement of intent on the forest landowner. The forest practices application shall not be considered complete until the holder of perpetual timber rights has submitted evidence acceptable to the department that such service has occurred.

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

     (6) Transfer of the approved application or notification to a new landowner, timber owner or operator requires written notice by the ((original)) former landowner or ((applicant)) timber owner to the department and should include the original application or notification number. This written notice shall be in a form acceptable to the department and shall contain an affirmation signed by the new landowner, timber owner, or operator, as applicable, that he/she agrees to be bound by all conditions on the approved application or notification. In the case of a transfer of an application previously approved without the landowner's signature the new timber owner or operator must submit a bond securing compliance with the requirements of the forest practices rules as determined necessary by the department. If an application or notification indicates that the landowner or timber owner is also the operator, or an operator signed the application, no notice need be given regarding any change in subcontractors or similar independent contractors working under the supervision of the operator of record.

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

     (8))) Applications and notifications, if complete shall be considered officially received on the date and time shown on any registered or certified mail receipt, or the written receipt given at the time of personal delivery, or at the time of receipt by general mail delivery. The department will immediately provide a dated receipt to the applicant. Applications or notifications that are not complete, or are inaccurate will not be considered officially received until the applicant furnishes the necessary information to complete the application.

     (a) A review statement from the U.S. Forest Service that evaluates compliance of the forest practices with the CRGNSA special management area guidelines is necessary information for an application or notification within the CRGNSA special management area. The review statement requirement shall be waived if the applicant can demonstrate the U.S. Forest Service received a complete plan application and failed to act within ((45)) forty-five days.

     (b) An environmental checklist (WAC 197-11-315) is necessary information for all Class IV applications.

     (c) A local governmental entity clearing and/or grading permit is necessary information for all Class IV applications on lands that have been or will be converted to a use other than commercial timber production or on lands which have been platted after January 1, 1960, as provided in chapter 58.17 RCW, if the local governmental entity has jurisdiction and has an ordinance requiring such permit.

     (d) A checklist road maintenance and abandonment plan is necessary information for all small forest landowners' applications or notifications for timber harvest (including salvage), unless exempt under WAC 222-24-0511, or unless the application is a small forest landowner long-term application which requires a roads assessment. ((If a notification or application is delivered in person to the department by the operator or the operator's authorized agent, the department shall immediately provide a dated receipt. In all other cases, the department shall immediately mail a dated receipt to the applicant.

     (9))) (8) An operator's name, if known, must be included on any forest practices application or notification. The landowner or timber owner must provide notice of hiring or change of operator to the department within ((48)) forty-eight hours. The department shall promptly notify the landowner if the operator is subject to a notice of intent to disapprove under WAC 222-46-070. Once notified, the landowner will not permit the operator, who is subject to a notice of intent to disapprove, to conduct the forest practices specified in the application or notification, or any other forest practices until such notice of intent to disapprove is removed by the department.

     (((10))) (9) Financial assurances may be required by the department prior to the approval of any future forest practices application or notification to an operator or landowner under the provisions of WAC 222-46-090.

[Statutory Authority: RCW 76.09.040. 06-11-112, § 222-20-010, filed 5/18/06, effective 6/18/06; 05-12-119, § 222-20-010, filed 5/31/05, effective 7/1/05. Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-010, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-20-010, filed 3/13/98, effective 5/1/98; 93-12-001, § 222-20-010, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-20-010, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-010, filed 11/16/87, effective 1/1/88; 82-18-053 (Resolution No. 82-2), § 222-20-010, filed 8/31/82. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-20-010, filed 8/3/82, effective 10/1/82; Order 263, § 222-20-010, filed 6/16/76.]

     (a) A description of the forest practices to be conducted during the period requested for the permit, and a map(s) showing their locations; and

     (b) Prescriptions must be identified where operations are proposed within or include areas of resource sensitivity.

     (2) A landowner with an approved road maintenance and abandonment plan (other than a checklist) may apply for a multiyear permit to perform road maintenance(([,])), road abandonment, and/or associated right of way timber harvest, if the schedule for implementing the plan is longer than two years.

     (3) A landowner may apply for a multiyear permit to perform an approved alternate plan.

[Statutory Authority: RCW 76.09.040. 06-11-112, § 222-20-015, filed 5/18/06, effective 6/18/06. Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-015, filed 5/30/01, effective 7/1/01.]

     (2) Review of proposed application.

     (a) Step 1: Resource and roads assessment review. The landowner will submit the resource and roads assessment portion of the application. As part of the review, the department will determine any additional known resources or threats to public safety and initiate one or more site reviews in consultation with the department of ecology, the department of fish and wildlife, and the affected Indian tribes. The department will notify the landowner and the landowner's representative to attend the site review(s). Within forty-five days of receiving the complete assessment, the department will notify the landowner in writing of its validation or rejection of the assessment. If rejected, the department will provide a written statement to the landowner explaining why the assessment was rejected.

     (b) Step 2: Resource protection strategies review. The department will accept for review the resource protection strategies portion of the long-term application after the department validates Step 1. The required elements of Step 2 will include a description of proposed forest practices activities and strategies for protection of all resources identified in Step 1. The department will approve, condition, or disapprove Step 2 within forty-five days of receiving the complete Step 2 portion. If disapproved, the department will provide a written statement to the landowner explaining why the proposed strategies were disapproved.

     (3) Activity notice. At least five business days before a landowner starts an approved forest practices activity the landowner will submit to the department an activity notice in a format acceptable to the department.

     (4) Amendments to long-term applications.

     (a) The department may authorize nonsubstantial amendments as authorized in WAC 222-20-060.

     (b) If the board considers new or amended rules to achieve resource protection objectives, the department and the board will do the following regarding existing approved long-term applications:

     (i) The department, in consultation with the departments of ecology, fish and wildlife, and affected Indian tribes will review, and if necessary analyze the effects of approved long-term applications on the public resources the proposed rules are intended to protect.

     (ii) The department will report the results of its review and/or analysis to the board prior to rule adoption.

     (iii) Upon rule adoption, the board may direct the department to condition existing approved long-term applications to protect resources.

     (iv) The department will notify impacted landowners in writing of the board's decision.

[]

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

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

     (c) When they involve lands described in (c)(i) through (iv) of this subsection, the applicable time limit shall be no less than ((14)) fourteen business days from transmittal to the local governmental entity unless the local governmental entity has waived its right to object or has consented to approval of the application:

     (i) Lands platted after January 1, 1960, as provided in chapter 58.17 RCW;

     (ii) Lands that have been or are being converted to another use;

     (iii) Lands which are not to be reforested because of likelihood of future conversion to urban development (see WAC 222-16-060 and 222-24-050); or

     (iv) Forest practices involving timber harvesting or road construction on lands that are contained within urban growth areas, designated pursuant to chapter 36.70A RCW.

     (d) Applications for multiyear permits will be approved, conditioned, or disapproved within forty-five days of the department receiving a complete application.

     (e) Small forest landowner long-term applications will be reviewed in two steps as described in WAC 222-20-016. The department will review Step 1 and issue a decision within forty-five days of receiving a complete resource and roads assessment. The department will review and approve, condition, or disapprove Step 2 within forty-five days of receiving a complete resource protection strategies portion of the long-term application.

     (2) Unless the local governmental entity has waived its rights under the act or consents to approval, the department shall not approve an application involving lands platted after January 1, 1960, as provided in chapter 58.17 RCW, or lands that have been or are being converted to another use until at least ((14)) fourteen business days from the date of transmittal to the local governmental entity.

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

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

     (a) The local governmental entity objects and the application involves lands platted after January 1, 1960, as provided in chapter 58.17 RCW, or lands that have been or are being converted where the county's right of objection is ((14)) fourteen business days which may be longer than the approval time limit.

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

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

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

     (((6) An application for a multiyear permit must be approved, conditioned or disapproved by the department within 45 days of receiving a complete application.))

[Statutory Authority: RCW 76.09.040. 05-12-119, § 222-20-020, filed 5/31/05, effective 7/1/05. Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-020, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-020, filed 11/16/87, effective 1/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-20-020, filed 8/3/82, effective 10/1/82; Order 263, § 222-20-020, filed 6/16/76.]

     (2) Upon delivery of a complete notification or application ((to the appropriate region office,)) the department will provide a written receipt ((for such notification or application shall be issued by the department as follows:

     (a) If delivery is in person, a dated receipt shall be issued immediately to the applicant.

     (b) If delivery is by registered or certified mail, a dated receipt shall be mailed immediately to the applicant.

     (c) If delivery is by other means, a receipt dated on the day the department begins processing the application shall be mailed to the applicant)) to the landowner, timber owner, and operator.

     (3) Each receipt will indicate the file number assigned to the notification or application.

[Statutory Authority: RCW 76.09.040. 88-19-112 (Order 551, Resolution No. 88-1), § 222-20-030, filed 9/21/88, effective 11/1/88; Order 263, § 222-20-030, filed 6/16/76.]

     (2) All approvals are subject to any conditions stipulated on the approved application and to any subsequent additional requirements set forth in a stop work order or a notice to comply.

     (3) Local governmental entity conditions.

     (a) RCW 76.09.240(4) allows a local governmental entity to exercise limited land use planning or zoning authority on certain types of forest practices. This subsection is designed to ensure that local governmental entities exercise this authority consistent with chapter 76.09 RCW and the rules in TITLE 222 WAC. The system provided for in this subsection is optional.

     (b) This subsection only applies to Class IV general applications on lands that have been or are being converted to a use other than commercial timber production or to Class IV general applications on lands which have been platted after January 1, 1960, as provided in chapter 58.17 RCW.

     (c) The department shall transmit the applications to the appropriate local governmental entity within two business days from the date the department officially receives the application.

     (d) The department shall condition the application consistent with the request of the local governmental entity if:

     (i) The local governmental entity has adopted a clearing and/or grading ordinance that addresses the items listed in (e) of this subsection and requires a permit;

     (ii) The local governmental entity has issued a permit under the ordinance in (i) that contains the requested conditions; and

     (iii) The local governmental entity has entered into an interagency agreement with the department consistent with WAC 222-50-030 addressing enforcement of forest practices.

     (e) The local governmental entity conditions may only cover:

     (i) The location and character of open space and/or vegetative buffers;

     (ii) The location and design of roads;

     (iii) The retention of trees for bank stabilization, erosion prevention, and/or storm water management; or

     (iv) The protection of critical areas designated pursuant to chapter 36.70A RCW.

     (f) Local governmental entity conditions shall be filed with the department within twenty-nine days of the ((filing of the application with the)) department's official receipt of the application or within fourteen business days of the transmittal of the application to the local governmental entity or one day before the department acts on the application, whichever is later.

     (g) The department shall incorporate local governmental entity conditions consistent with this subsection as conditions of the forest practices approval.

     (h) Any exercise of local governmental entity authority consistent with this subsection shall be considered consistent with the forest practices rules in this chapter.

     (4) Lead agency mitigation measures.

     (a) This subsection is designed to specify procedures for a mitigated DNS process that are consistent with chapters 76.09 and 43.21C RCW and the rules in TITLE 222 WAC and chapter 197-11 WAC.

     (b) This subsection applies to all Class IV applications in which the department is not the lead agency under ((SEPA)) the State Environmental Policy Act. (See WAC 197-11-758.)

     (c) The department shall transmit the application to the lead agency within two business days from the date the department officially receives the application.

     (d) The lead agency may specify mitigation measures pursuant to WAC 197-11-350.

     (e) The lead agency threshold determination and any mitigation measures must be filed with the department within the later of (((i))) twenty-nine days of the official receipt of the application by the department, (((ii))) fourteen business days of the transmittal of the application to the lead agency if the lead agency is a local governmental entity; or (((iii))) one day before the department acts on the application.

     (f) Unless the applicant clarifies or changes the application to include mitigation measures specified by the lead agency, the department must ((deny)) disapprove the application or require an ((EIS)) environmental impact statement. (See WAC 197-11-738.)

     (g) If the department does not receive a threshold determination from the lead agency by the time it must act on the application, the department shall ((deny)) disapprove the application.

     (5) Small forest landowner approval conditions. The department shall not disapprove a small forest landowner's application((/)) or notification on the basis that fish passage barriers have not been removed or replaced if the landowner has committed to participate in the department's family forest fish passage program for:

     ((•)) (a) Any barriers on their forest roads located within the boundaries of their application/notification; and

     ((•)) (b) Any barriers on their forest roads needed for their proposed forest practice, but located outside the boundaries of the application/notification.

     (6) CRGNSA special management area.

     (a) Policy. The states of Oregon and Washington have entered into a Compact preauthorized by Congress to implement the CRGNSA Act, 16 U.S.C. §§ 544, et seq. chapter 43.97 RCW, 16 U.S.C. § 544c. The purposes of the CRGNSA Act are:

     (i) To establish a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge; and

     (ii) To protect and support the economy of the Columbia River Gorge area by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with paragraph (1). 16 U.S.C. § 544a.

     The forest practices rules addressing forest practices in the CRGNSA special management area recognize the intent of Congress and the states expressed in the CRGNSA Act and Compact and the intent of the Washington state legislature in the Forest Practices Act. These rules are designed to recognize the public interest in sound natural resource protection provided by the Act and the Compact, including the protection to public resources, recreation, and scenic beauty. These rules are designed to achieve a comprehensive system of laws and rules for forest practices in the CRGNSA special management area which avoids unnecessary duplication, provides for interagency input and intergovernmental and tribal coordination and cooperation, considers reasonable land use planning goals contained in the CRGNSA management plan, and fosters cooperation among public resources managers, forest landowners, tribes and the citizens.

     (b) The CRGNSA special management area guidelines shall apply to all forest practices within the CRGNSA special management area. Other forest practices rules also apply to these forest practices. To the extent these other rules are inconsistent with the guidelines, the more restrictive requirement controls. To the extent there is an incompatibility between the guidelines and another rule, the guidelines control. Copies of the guidelines can be obtained from the department's Southeast and Pacific Cascade regional offices and Olympia office, as well as from the Columbia River Gorge commission and the U.S. Forest Service.

     (c) The department shall review and consider the U.S. Forest Service review statement and shall consult with the U.S. Forest Service and the Columbia River Gorge commission prior to making any determination on an application or notification within the CRGNSA special management area.

[Statutory Authority: RCW 76.09.040. 06-11-112, § 222-20-040, filed 5/18/06, effective 6/18/06; 05-12-119, § 222-20-040, filed 5/31/05, effective 7/1/05. Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-040, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 98-07-047, § 222-20-040, filed 3/13/98, effective 5/1/98. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-20-040, filed 11/15/91, effective 12/16/91. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-040, filed 11/16/87, effective 1/1/88; Order 263, § 222-20-040, filed 6/16/76.]

     (2) For Class II, III, and IV special forest practices, if a landowner wishes to maintain the option for conversion to a use other than commercial timber ((operation)) growing, the landowner may request the appropriate local governmental entity to approve a conversion option harvest plan. This plan, if approved by the local governmental entity and followed by the landowner, shall release the landowner from the six-year moratorium on future development, but does not create any other rights. The conversion option harvest plan shall be attached to the application or notification as a condition. Violation of the conversion option harvest plan will result in the reinstatement of the local governmental entity's right to the six-year moratorium. Reforestation requirements will not be waived in the conversion option harvest plan. Reforestation rules shall apply at the completion of the harvest operation as required in chapter 222-34 WAC. Nothing herein shall preclude the local governmental entity from charging a fee to approve such a plan. (See RCW 76.09.060 (3)(b)(i).)

     (3) If the application or notification does not state that any land covered by the application or notification will be or is intended to be converted to a specified active use incompatible with commercial timber ((operations)) growing, or if the forest practice takes place without a required application or notification, then the provisions of RCW 76.09.060 (3)(b)(i) regarding the six-year moratorium apply.

[Statutory Authority: RCW 76.09.040. 05-12-119, § 222-20-050, filed 5/31/05, effective 7/1/05. Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-050, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-20-050, filed 11/15/91, effective 12/16/91; Order 263, § 222-20-050, filed 6/16/76.]

[Statutory Authority: RCW 76.09.040. 05-12-119, § 222-20-060, filed 5/31/05, effective 7/1/05. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-20-060, filed 12/3/97, effective 1/3/98. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-060, filed 11/16/87, effective 1/1/88; Order 263, § 222-20-060, filed 6/16/76.]

     (a) Multiyear permits are effective for ((up)) three to five years. ((The)) A multiyear permit for lands included in a watershed analysis pursuant to chapter 222-22 WAC is not renewable if a five-year watershed analysis review is found necessary by the department and has not been completed.

     (b) Small forest landowner long-term applications are effective for terms of three to fifteen years.

     (2) A notification is ((also)) effective for a term of two years beginning five days from the date ((of receipt)) it is officially received.

[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-080, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.060, 76.09.040 and chapter 34.05 RCW. 92-23-056, § 222-20-080, filed 11/17/92, effective 12/18/92; Order 263, § 222-20-080, filed 6/16/76.]

     (2) Parks register. The department shall establish and update every ((5)) five years a parks register listing all publicly owned parks where the affected owner has filed a written request with the department for inclusion on such register. The department shall notify owners of all public parks inventoried on the state comprehensive outdoor recreation plan (SCORP) of the opportunity to register.

     (3) DNR to provide information to ((OAHP)) DAHP. The department shall provide the ((office)) department of archaeology and historic preservation (((OAHP)) DAHP) with copies of all applications and notifications for forest practices to be conducted on lands known to contain historic sites or archaeological resources as identified by ((OAHP)) DAHP.

[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040, [76.09.]050, [76.09.]370, 76.13.120(9). 01-12-042, § 222-20-100, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-100, filed 11/16/87, effective 1/1/88. Statutory Authority: RCW 76.09.040 and 76.09.050. 82-16-077 (Resolution No. 82-1), § 222-20-100, filed 8/3/82, effective 10/1/82.]

     (2) Where an application involves cultural resources the landowner shall meet with the affected tribe(s) with the objective of agreeing on a plan for protecting the archaeological or cultural value. The department may condition the application in accordance with the plan.

     (3) Affected Indian tribes shall determine whether plans for protection of cultural resources will be forwarded to the ((office)) department of archaeological and historic preservation (((OAHP)) DAHP).

[Statutory Authority: RCW 76.09.040. 87-23-036 (Order 535), § 222-20-120, filed 11/16/87, effective 1/1/88.]

OTS-9824.1

AMENDATORY SECTION(Amending WSR 06-17-128, filed 8/21/06, effective 9/21/06)

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

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

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

     "Alluvial fan" see "sensitive sites" definition.

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

     "Aquatic resources" means water quality, fish, 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.

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

     "Bankfull depth" means the average vertical distance between the channel bed and the estimated water surface elevation required to completely fill the channel to a point above which water would enter the flood plain or intersect a terrace or hillslope. In cases where multiple channels exist, the bankfull depth is the average depth of all channels along the cross-section. (See board manual section 2.)

     "Bankfull width" means:

     (a) For streams - the measurement of the lateral extent of the water surface elevation perpendicular to the channel at bankfull depth. In cases where multiple channels exist, bankfull width is the sum of the individual channel widths along the cross-section (see board manual section 2).

     (b) For lakes, ponds, and impoundments - line of mean high water.

     (c) For tidal water - line of mean high tide.

     (d) For periodically inundated areas of associated wetlands - line of periodic inundation, which will be found by examining the edge of inundation to ascertain where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland.

     "Basal area" means the area in square feet of the cross section of a tree bole measured at 4 1/2 feet above the ground.

     "Bedrock hollows" (colluvium-filled bedrock hollows, or hollows; also referred to as zero-order basins, swales, or bedrock depressions) means landforms that are commonly spoon-shaped areas of convergent topography within unchannelled valleys on hillslopes. (See board manual section 16 for identification criteria.)

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

     "Bog" means wetlands which have the following characteristics: Hydric organic soils (peat and/or muck) typically 16 inches or more in depth (except over bedrock or hardpan); and vegetation such as sphagnum moss, Labrador tea, bog laurel, bog rosemary, sundews, and sedges; bogs may have an overstory of spruce, western hemlock, lodgepole pine, western red cedar, western white pine, Oregon crabapple, or quaking aspen, and may be associated with open water. This includes nutrient-poor fens. (See board manual section 8.)

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

     "Bull trout habitat overlay" means those portions of Eastern Washington streams containing bull trout habitat as identified on the department of fish and wildlife's bull trout map. Prior to the development of a bull trout field protocol and the habitat-based predictive model, the "bull trout habitat overlay" map may be modified to allow for locally-based corrections using current data, field knowledge, and best professional judgment. A landowner may meet with the departments of natural resources, fish and wildlife and, in consultation with affected tribes and federal biologists, determine whether certain stream reaches have habitat conditions that are unsuitable for supporting bull trout. If such a determination is mutually agreed upon, documentation submitted to the department will result in the applicable stream reaches no longer being included within the definition of bull trout habitat overlay. Conversely, if suitable bull trout habitat is discovered outside the current mapped range, those waters will be included within the definition of "bull trout habitat overlay" by a similar process.

Bull Trout Overlay Map

     "Channel migration zone (CMZ)" means the area where the active channel of a stream is prone to move and this results in a potential near-term loss of riparian function and associated habitat adjacent to the stream, except as modified by a permanent levee or dike. For this purpose, near-term means the time scale required to grow a mature forest. (See board manual section 2 for descriptions and illustrations of CMZs and delineation guidelines.)

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

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

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

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

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

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

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

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

     "Completion of harvest" means the latest of:

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

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

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

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

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

     "Convergent headwalls" (or headwalls) means teardrop-shaped landforms, broad at the ridgetop and terminating where headwaters converge into a single channel; they are broadly concave both longitudinally and across the slope, but may contain sharp ridges separating the headwater channels. (See board manual section 16 for identification criteria.)

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

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

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

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

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

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

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

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

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

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

     "Deep-seated landslides" means landslides in which most of the area of the slide plane or zone lies below the maximum rooting depth of forest trees, to depths of tens to hundreds of feet. (See board manual section 16 for identification criteria.)

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

     "Department" means the department of natural resources.

     "Desired future condition (DFC)" is a reference point on a pathway and not an endpoint for stands. DFC means the stand conditions of a mature riparian forest at 140 years of age, the midpoint between 80 and 200 years. Where basal area is the only stand attribute used to describe 140-year old stands, these are referred to as the "Target Basal Area."

     "Diameter at breast height (dbh)" means the diameter of a tree at 4 1/2 feet above the ground measured from the uphill side.

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

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

     "Drainage structure" means a construction technique or feature that is built to relieve surface runoff and/or intercepted ground water from roadside ditches to prevent excessive buildup in water volume and velocity. A drainage structure is not intended to carry any typed water. Drainage structures include structures such as: Cross drains, relief culverts, ditch diversions, water bars, or other such structures demonstrated to be equally effective.

     "Eastern Washington" means the geographic area in Washington east of the crest of the Cascade Mountains from the international border to the top of Mt. Adams, then east of the ridge line dividing the White Salmon River drainage from the Lewis River drainage and east of the ridge line dividing the Little White Salmon River drainage from the Wind River drainage to the Washington-Oregon state line.

Eastern Washington Definition Map

     "Eastern Washington timber habitat types" means elevation ranges associated with tree species assigned for the purpose of riparian management according to the following:

Timber Habitat Types	Elevation Ranges
ponderosa pine	0 - 2500 feet
mixed conifer	2501 - 5000 feet
high elevation	above 5000 feet

    
     "Edge" of any water means the outer edge of the water's bankfull width or, where applicable, the outer edge of the associated channel migration zone.

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

     "Equipment limitation zone" means a 30-foot wide zone measured horizontally from the outer edge of the bankfull width of a Type Np or Ns Water. It applies to all perennial and seasonal nonfish bearing streams.

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

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

     Clearcuts;

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

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

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

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

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

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

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

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

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

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

     "Fill" means the placement of earth material or aggregate for road or landing construction or other similar activities.

     "Fish" means for purposes of these rules, species of the vertebrate taxonomic groups of Cephalospidomorphi and Osteichthyes.

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

     "Fish passage barrier" means any artificial in-stream structure that impedes the free passage of fish.

     "Flood level - 100 year" means a calculated flood event flow based on an engineering computation of flood magnitude that has a 1 percent chance of occurring in any given year. For purposes of field interpretation, landowners may use the following methods:

     Flow information from gauging stations;

     Field estimate of water level based on guidance for "Determining the 100-Year Flood Level" in the forest practices board manual section 2.

     The 100-year flood level shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or under license from the federal government, the state, or a political subdivision of the state.

     "Forest land" means all land which is capable of supporting a merchantable stand of timber and is not being actively used for a use which is incompatible with timber growing. Forest land does not include agricultural land that is or was enrolled in the conservation reserve enhancement program by contract if such agricultural land was historically used for agricultural purposes and the landowner intends to continue to use the land for agricultural purposes in the future. For small forest landowner road maintenance and abandonment planning only, the term "forest land" excludes the following:

     (a) Residential home sites. A residential home site may be up to five acres in size, and must have an existing structure in use as a residence;

     (b) Cropfields, orchards, vineyards, pastures, feedlots, fish pens, and the land on which appurtenances necessary to the production, preparation, or sale of crops, fruit, dairy products, fish, and livestock exist.

     "Forest landowner" means 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. However, 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. The following definitions apply only to road maintenance and abandonment planning:

     (1) "Large forest landowner" is a forest landowner who is not a small forest landowner.

     (2) "Small forest landowner" is a forest landowner who at the time of submitting a forest practices application or notification meets all of the following conditions:

     • Has an average annual timber harvest level of two million board feet or less from their own forest lands in Washington state;

     • Did not exceed this annual average harvest level in the three year period before submitting a forest practices application or notification;

     • Certifies to the department that they will not exceed this annual harvest level in the ten years after submitting the forest practices application or notification.

     However, the department will agree that an applicant is a small forest landowner if the landowner can demonstrate that the harvest levels were exceeded in order to raise funds to pay estate taxes or to meet equally compelling and unexpected obligations such as court-ordered judgments and extraordinary medical expenses.

     "Forest practice" means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:

     Road and trail construction;

     Harvesting, final and intermediate;

     Precommercial thinning;

     Reforestation;

     Fertilization;

     Prevention and suppression of diseases and insects;

     Salvage of trees; and

     Brush control.

     "Forest practice" shall not include: Forest species seed orchard operations and intensive forest nursery operations; or preparatory work such as tree marking, surveying and road flagging; or removal or harvest of incidental vegetation from forest lands such as berries, ferns, greenery, mistletoe, herbs, mushrooms, and other products which cannot normally be expected to result in damage to forest soils, timber or public resources.

     "Forest road" means ways, lanes, roads, or driveways on forest land used since 1974 for forest practices. "Forest road" does not include skid trails, highways, or local government roads except where the local governmental entity is a forest landowner. For road maintenance and abandonment planning purposes only, "forest road" does not include forest roads used exclusively for residential access located on a small forest landowner's forest land.

     "Forest trees" does not include hardwood trees cultivated by agricultural methods in growing cycles shorter than 15 years if the trees were planted on land that was not in forest use immediately before the trees were planted and before the land was prepared for planting the trees. "Forest trees" includes Christmas trees but does not include Christmas trees that are cultivated by agricultural methods, as that term is defined in RCW 84.33.035.

     "Full bench road" means a road constructed on a side hill without using any of the material removed from the hillside as a part of the road. This construction technique is usually used on steep or unstable slopes.

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

     "Ground water recharge areas for glacial deep-seated slides" means the area upgradient that can contribute water to the landslide, assuming that there is an impermeable perching layer in or under a deep-seated landslide in glacial deposits. (See board manual section 16 for identification criteria.)

     "Headwater spring" means a permanent spring at the head of a perennial channel. Where a headwater spring can be found, it will coincide with the uppermost extent of Type Np Water.

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

     "Historic site" includes:

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

     Places associated with a personality important in history; or

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

     "Horizontal distance" means the distance between two points measured at a ((0%)) zero percent slope.

     "Hyporheic" means an area adjacent to and below channels where interstitial water is exchanged with channel water and water movement is mainly in the downstream direction.

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

     Mass wasting;

     Surface and road erosion;

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

     Large organic debris;

     Shading; and

     Stream bank and bed stability.

     "Inner gorges" means canyons created by a combination of the downcutting action of a stream and mass movement on the slope walls; they commonly show evidence of recent movement, such as obvious landslides, vertical tracks of disturbance vegetation, or areas that are concave in contour and/or profile. (See board manual section 16 for identification criteria.)

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

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

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

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

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

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

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

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

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

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

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

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

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

     "Multiyear permit" means a permit to conduct forest practices which is effective for longer than two years but no longer than five years.

     "Northern spotted owl site center" means:

     (1) Until June 30, 2007, the location of northern spotted owls:

     (a) Recorded by the department of fish and wildlife as status 1, 2 or 3 as of November 1, 2005; or

     (b) Newly discovered, and recorded by the department of fish and wildlife as status 1, 2 or 3 after November 1, 2005.

     (2) After June 30, 2007, the location of status 1, 2 or 3 northern spotted owls based on the following definitions:

Status 1:	Pair or reproductive - a male and female heard and/or observed in close proximity to each other on the same visit, a female detected on a nest, or one or both adults observed with young.
Status 2:	Two birds, pair status unknown - the presence or response of two birds of opposite sex where pair status cannot be determined and where at least one member meets the resident territorial single requirements.
Status 3:	Resident territorial single - the presence or response of a single owl within the same general area on three or more occasions within a breeding season with no response by an owl of the opposite sex after a complete survey; or three or more responses over several years (i.e., two responses in year one and one response in year two, for the same general area).

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

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

     "Occupied marbled murrelet site" means:

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

     (a) A nest is located; or

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

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

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

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

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

     (3) For sites defined in (1) and (2) above, the sites will be presumed to be occupied based upon observation of circling described in (1)(e), unless a two-year survey following the 2003 Pacific Seabird Group (PSG) protocol has been completed and an additional third-year of survey following a method listed below is completed and none of the behaviors or conditions listed in (1)(a) through (d) of this definition are observed. The landowner may choose one of the following methods for the third-year survey:

     (a) Conduct a third-year survey with a minimum of nine visits conducted in compliance with 2003 PSG protocol. If one or more marbled murrelets are detected during any of these nine visits, three additional visits conducted in compliance with the protocol of the first nine visits shall be added to the third-year survey. Department of fish and wildlife shall be consulted prior to initiating third-year surveys; or

     (b) Conduct a third-year survey designed in consultation with the department of fish and wildlife to meet site specific conditions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     "Preferred tree species" means the following species listed in descending order of priority for each timber habitat type:

Ponderosa pine habitat type	Mixed conifer habitat type
all hardwoods	all hardwoods
ponderosa pine	western larch
western larch	ponderosa pine
Douglas-fir	western red cedar
western red cedar	western white pine
	Douglas-fir
	lodgepole pine

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

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

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

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

     For fish and water:

     Physical fish habitat, including temperature and turbidity;

     Turbidity in hatchery water supplies; and

     Turbidity and volume for areas of water supply.

     For capital improvements of the state or its political subdivisions:

     Physical or structural integrity.

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

     "Riparian function" includes bank stability, the recruitment of woody debris, leaf litter fall, nutrients, sediment filtering, shade, and other riparian features that are important to both riparian forest and aquatic system conditions.

     "Riparian management zone (RMZ)" means:

     (1) For Western Washington

     (a) The area protected on each side of a Type S or F Water measured horizontally from the outer edge of the bankfull width or the outer edge of the CMZ, whichever is greater (see table below); and

Site Class	Western Washington Total RMZ Width
I	200'
II	170'
III	140'
IV	110'
V	90'

     (b) The area protected on each side of Type Np Waters, measured horizontally from the outer edge of the bankfull width. (See WAC 222-30-021(2).)

     (2) For Eastern Washington

     (a) The area protected on each side of a Type S or F Water measured horizontally from the outer edge of the bankfull width or the outer edge of the CMZ, whichever is greater (see table below); and

Site Class	Eastern Washington Total RMZ Width
I	130'
II	110'
III	90' or 100'*
IV	75' or 100'*
V	75' or 100'*

*	Dependent upon stream size. (See WAC 222-30-022.)

     (b) The area protected on each side of Type Np Waters, measured horizontally from the outer edge of the bankfull width. (See WAC 222-30-022(2).)

     (3) For exempt 20 acre parcels, a specified area alongside Type S and F Waters where specific measures are taken to protect water quality and fish and wildlife habitat.

     "RMZ core zone" means:

     (1) For Western Washington, the 50 foot buffer of a Type S or F Water, measured horizontally from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-021.)

     (2) For Eastern Washington, the ((30)) thirty foot buffer of a Type S or F Water, measured horizontally from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-022.)

     "RMZ inner zone" means:

     (1) For Western Washington, the area measured horizontally from the outer boundary of the core zone of a Type S or F Water to the outer limit of the inner zone. The outer limit of the inner zone is determined based on the width of the affected water, site class and the management option chosen for timber harvest within the inner zone. (See WAC 222-30-021.)

     (2) For Eastern Washington, the area measured horizontally from the outer boundary of the core zone 45 feet (for streams less than 15 feet wide) or 70 feet (for streams more than 15 feet wide) from the outer boundary of the core zone. (See WAC 222-30-022.)

     "RMZ outer zone" means the area measured horizontally between the outer boundary of the inner zone and the RMZ width as specified in the riparian management zone definition above. RMZ width is measured from the outer edge of the bankfull width or the outer edge of the channel migration zone, whichever is greater. (See WAC 222-30-021 and 222-30-022.)

     "Road construction" means either of the following:

     (a) Establishing any new forest road;

     (b) Road work located outside an existing forest road prism, except for road maintenance.

     "Road maintenance" means either of the following:

     (a) All road work located within an existing forest road prism;

     (b) Road work located outside an existing forest road prism specifically related to maintaining water control, road safety, or visibility, such as:

     • Maintaining, replacing, and installing drainage structures;

     • Controlling road-side vegetation;

     • Abandoning forest roads according to the process outlined in WAC 222-24-052(3).

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

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

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

     "Sensitive sites" are areas near or adjacent to Type Np Water and have one or more of the following:

     (1) Headwall seep is a seep located at the toe of a cliff or other steep topographical feature and at the head of a Type Np Water which connects to the stream channel network via overland flow, and is characterized by loose substrate and/or fractured bedrock with perennial water at or near the surface throughout the year.

     (2) Side-slope seep is a seep within 100 feet of a Type Np Water located on side-slopes which are greater than 20 percent, connected to the stream channel network via overland flow, and characterized by loose substrate and fractured bedrock, excluding muck with perennial water at or near the surface throughout the year. Water delivery to the Type Np channel is visible by someone standing in or near the stream.

     (3) Type Np intersection is the intersection of two or more Type Np Waters.

     (4) Headwater spring means a permanent spring at the head of a perennial channel. Where a headwater spring can be found, it will coincide with the uppermost extent of Type Np Water.

     (5) Alluvial fan means a depositional land form consisting of cone-shaped deposit of water-borne, often coarse-sized sediments.

     (a) The upstream end of the fan (cone apex) is typically characterized by a distinct increase in channel width where a stream emerges from a narrow valley;

     (b) The downstream edge of the fan is defined as the sediment confluence with a higher order channel; and

     (c) The lateral margins of a fan are characterized by distinct local changes in sediment elevation and often show disturbed vegetation.

     Alluvial fan does not include features that were formed under climatic or geologic conditions which are not currently present or that are no longer dynamic.

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

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

     "Site class" means a grouping of site indices that are used to determine the 50-year or 100-year site class. In order to determine site class, the landowner will obtain the site class index from the state soil survey, place it in the correct index range shown in the two tables provided in this definition, and select the corresponding site class. The site class will then drive the RMZ width. (See WAC 222-30-021 and 222-30-022.)

     (1) For Western Washington

Site class	50-year site index range (state soil survey)
I	137+
II	119-136
III	97-118
IV	76-96
V	<75

     (2) For Eastern Washington

Site class	100-year site index range (state soil survey)	50-year site index range (state soil survey)
I	120+	86+
II	101-120	72-85
III	81-100	58-71
IV	61-80	44-57
V	≤60