Chapter § 14.4 State Regulation of Forest Practices

• Jurisdiction: Washington

§14.4 STATE REGULATION OF FOREST PRACTICES

Washington state's forest practices regulatory framework is detailed and complex, based primarily on the Forest Practices Act and rules and, in some instances, the State Environmental Policy Act.

(1) Scope of the Forest Practices Act

The Act applies to forest practices on forest land. The Act and rules define a "forest practice" as an activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber or removing forest biomass. RCW 76.09.020(17); WAC 222-16-010(forest biomass and forest practice defined). Examples include road and trail construction, harvesting, precommercial thinning, reforestation, fertilization, prevention and suppression of diseases and insects, salvage of trees, and brush control. Id. Excluded from the definition of "forest practice" is certain preparatory work such as "tree marking, surveying, and road flagging," as well as the removal or harvesting of incidental vegetation from forest lands, such as "berries, ferns, greenery, mistletoe, herbs, mushrooms, and other products which cannot normally be expected to result in damage to forest soils, timber, or public resources." RCW 76.09.020(16).

The Act also applies to hydraulic projects requiring forest practices applications or notifications. These activities include work that will use, divert, obstruct, or change the natural flow or bed of fish-bearing and nonfish waters. See RCW 76.09.020(18) and WAC 222-16-010 ("forest practices hydraulic projects" defined). These activities were formerly regulated by DFW under RCW 77.55 and the hydraulic code, WAC 220-110.

Key to determining whether a "forest practice" is subject to the Act is whether the activity is being conducted on or is pertaining to "forest land." Under the Act, "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." RCW 76.09.020(14); State Dep't of Natural Res. v. Marr, 54 Wn.App. 589, 593, 774 P.2d 1260 (1989). Whether land is actively being used in a manner incompatible with timber growing is a question of fact, and the land's zoning or tax classification is irrelevant to its status as "forest land." Heidgerken v. State Dep't of Natural Res., 99 Wn.App. 380, 390, 993 P.2d 934, review denied, 141 Wn.2d 1015 (2000); State Dep't of Natural Res. v. Browning, 148 Wn.App. 8, 19, 199 P.3d 430 (2008).

Excluded from the definition of "forest land" is agricultural land that is or was enrolled in the conservation reserve enhancement program by contract, but only if such agricultural land was historically used for agricultural purposes and the landowner intends to continue using it for agricultural purposes in the future. RCW 76.09.020(15). Also excluded, but only as it applies to the operation of the road maintenance and abandonment plan rules on small forest landowners, are residential home sites of up to five acres and 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. RCW 76.09.020(15)(a)-(b); Browning, 148 Wn.App. at 20. The road maintenance and abandonment rules are codified at WAC 222-24-050, -051, and -0511.

Practice Tip: It is important to be aware that the Forest Practices Act definition of "forest land" does not apply in other contexts, such as forest protection under Chapter 76.04 RCW, or for tax purposes under Chapter 84.33 RCW.

(2) Classification of forest practices

Forest practices regulated by the state are classified as Class I, II, III, IV-Special, and IV-General. RCW 76.09.050(1); WAC 222-16-050. The legislature intends that certain Class IV-General forest practices be regulated primarily by local governments. See §14.5, below. Forest practices classifications are important because they establish whether DNR or local government will be involved, the type of documents or permits required, the permit fee, and the applicability of SEPA.

The legislature has directed the Forest Practices Board to classify forest practices according to their environmental impact, ranging from Class I, which have no direct potential for damaging public resources, to Class IV, which have a potential for substantial impact on the environment. RCW 76.09.050(1); WAC 222-16-050(1) -(2). Class IV practices are divided into Class IV-Special—forestry operations with special circumstances requiring further environmental review—and Class IV-General—operations converting forest land to a non forest use or occurring in locations where conversions are likely to occur. See WAC 222-16-050(1) -(2).

The descriptions of the various classes are interrelated. Another example involves forest practices that would otherwise be a Class I, II, III, or IV-General but are classified as a Class IV-Special if the operation includes one of the special circumstances specifically listed in the Class IV-Special rule. For example, forest practices that would otherwise be a Class I, II, III, or IV-General will be classified as a Class IV-Special if the operation involves one of the special circumstances specifically listed in the Class IV-Special rule. See WAC 222-16-050. Therefore, the practitioner must carefully review WAC 222-16-050 when considering a legal challenge to DNR's classification decisions.

Operations regulated by the state that meet the criteria of both Class IV-Special and Class IV-General are classified as Class IV-Special. Class IV-Special operations are subject to state rules adopted by the Forest Practices Board. The local government will generally be lead agency for SEPA review of Class IV-General applications. The local government will generally be lead agency for SEPA review of conversion-related forest practices permits. See RCW 76.09.040 (Forest Practices Board rules to govern operations regulated by the state); RCW 76.09.050(2) (permit requirements for forest practices regulated by the state); WAC 197-11-938(4) (SEPA lead agency rule for conversion-related forest practices). However, in areas in which Class IV-General jurisdiction has been transferred from DNR to the local government, the local government regulates the activities, not DNR. See RCW 76.09.240(3). See §14.5, below.

DNR must classify forest practices by reference to the classification rules as opposed to the general standards described in statute. Snohomish Cnty., 69 Wn.App. at 664, 850 P.2d 546 (1993), review denied, 123 Wn.2d 1003 (1994). DNR's classification decision may be challenged at the Pollution Control Hearings Board (PCHB), whose role is limited to determining whether DNR properly applied the classification rules. The PCHB may not independently classify a forest practice as Class IV-Special for circumstances not listed in the rule, because that would essentially invalidate the Forest Practices Board's rules, which the PCHB has no authority to do. Id. at 664 (analyzing authority of Forest Practices Appeals Board, the quasi-judicial agency which formerly heard forest practices appeals); see also Kettle Range Conserv. Grp. v. State Dep't of Natural Res., 120 Wn.App. 434, 458, 85 P.3d 894 (2003), review denied, 152 Wn.2d 1026 (2004) (challenge to forest practices as violating Clean Water Act dismissed as a rules challenge that must be brought in superior court). DNR may need additional information from an applicant in order to properly classify the application in some circumstances. Where potentially unstable slopes or landforms are located in or around the area of an application, DNR may require additional information about those landforms, including information from a qualified geologist, in order to properly classify the proposal. WAC 222-20-010(9).

(3) The permitting process

The Act and rules impose substantive and procedural requirements on essentially all forest practices conducted on private and other non–federally owned forest land in the state.

(a) Notifications and applications

Class II forest practices require a notification to DNR; Class III and IV practices require applications. WAC 222-20-010(1). No notification or permit is required for Class I forest practices. RCW 76.09.050(1).

Fees to conduct forest practices vary according to the type of forest practices proposed and whether a small forest landowner is involved. See RCW 76.09.065. Timber harvesting applications and notifications related to forestry operations (as opposed to forestland conversions) are $150 dollars except if the application or notification is submitted by a "small forest landowner" as the term is defined in RCW 76.09.450, in which case the fee is $100. Forestry operations that require a permit are classified as Class II, III or IV-Special. See RCW 76.09.050(1); WAC 222-16-050(1), (4), (5). The fee for all types of forest practices related to the conversion of forest land (including but not limited to timber harvesting) is $1,500. There is no reduced fee for small forest landowners filing applications for conversions. Conversion-related forest practices are classified as Class IV-General. RCW 76.09.050(1) (Class IV(a)-(c)); WAC 222-16-050(2). Class I forest practices do not require applications or notifications. RCW 76.09.050(2); WAC 222-20-010(1); see also RCW 76.09.050(1); WAC 222-16-050(3) (Class I forest practices defined).

For DNR's forest practices application and notification forms, see Dep't of Natural Res., Forest Practices Forms and Instructions, http://www.dnr.wa.gov/programs-and-services/forest-practices/review-applications-fpars/forest-practices-forms-and (last visited May 19, 2016). Forms may also be obtained through DNR's regional offices or the agency's Forest Practices Division in Olympia. Completed applications and notifications are submitted to the DNR office within the region in which the forest...