The Washington Forest Practices Act: When Is Compliance With Sepa Required?

• Publication year: 1982
• Citation: Vol. 6 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 6, No.1FALL 1982

COMMENTS

The Washington Forest Practices Act: When is Compliance with SEPA Required?

Christine M. Cordes

Evergreen forest land characterizes nearly one half of Washington State.(fn1) Abundant timber resources are the basis of the state's giant timber industry(fn2) and a significant factor in the recreational orientation of its citizenry.(fn3) Timber management policy is therefore paramount to the continuing economic and environmental vitality of Washington. In the 1974 Forest Practices Act (FPA),(fn4) the legislature delegated major control over protection and use of forest land resources to the forest practices board.(fn5) Three years prior to enactment of the FPA, Washington adopted the State Environmental Policy Act (SEPA),(fn6) mandating consideration of environmental factors in all major state agency decisions. The original 1974 Forest Practices Act did not expressly require compliance with SEPA. The 1975 amendments,(fn7) however, specifically exempt certain types of forest practices(fn8) from SEPA procedures. These exempted forest practices avoid stringent environmental impact statement (EIS) review under SEPA.(fn9)

The resulting FPA is incompatible with the functioning of SEPA because it reduces environmental scrutiny of forest land activities, despite the recognized potential of timber harvesting practices for environmental degradation.(fn10) This apparent statutory inconsistency led to the promulgation of regulations(fn11) which virtually exempt forest land activities from the aegis of SEPA policy, contrary to express provisions of the Forest Practices Act.(fn12)

In 1977, state citizens challenged these forest practices regulations(fn13) when the Department of Natural Resources (DNR) did not require SEPA review prior to a timber harvest of forest land adjacent to a state park on Whidbey Island.(fn14) In Noel v. Cole,(fn15) the court found the proposed harvest of the Whidbey Island Classic "U" tract subject to SEPA and the exemption from SEPA under the forest practices regulations unlawful. The court criticized the forest practices board for "over-zealous actions . . . in removing forest practices from SEPA considerations."(fn16) Although recognizing the board's legitimate interest in balancing the economic impacts of environmental protection with forest industry needs, the court acknowledged the board's failure to implement the balance intended by the legislature. The court concluded "the administrative agencies have done what the Legislature would not do, and have nearly completely exempted DNR and the timber industry from the provisions of SEPA."(fn17)

The Classic "U" controversy prompted the legislature to amend SEPA in 1981.(fn18) The SEPA amendment parallels the FPA by exempting from EIS requirements agency decisions concerning the same forest practices previously exempted under the FPA.(fn19) The impact of this amendment on the interpretation of the FPA is unsettled.(fn20) The new SEPA provisions, however, indicate legislative approval of the Classic "U" holding that any forest practice operation with significant environmental consequences is subject to SEPA under the Forest Practices Act. (fn21)

The Forest Practices Act recognizes the importance of the state's valuable timber resources and balances industry needs for efficient timber management with protection of the state's environmental quality, including fisheries, wildlife, water and air quality, recreation, and scenic beauty.(fn22) Notwithstanding the FPA's provisions for reduced environmental review, the Act does not authorize the forest practices board to adopt regulations that virtually exempt forest practices from SEPA's EIS requirements.(fn23)

To analyze the problems created by the FPA's scheme for environmental review, this comment first examines the statutory definitions of the forest practices classes, determining which forest practice classes are within the scope of SEPA review under the Forest Practices Act. Second, the comment discusses the effect of the 1981 SEPA amendment on the types of forest practices exempt from SEPA. The comment further points out the failure of the existing forest practices regulations to achieve the policy balance required by the Forest Practices Act. The comment's conclusion is two-fold: the Classic "U" holding best represents the legislature's statutory intent regarding the scope of SEPA review of forest practices; continued failure of the forest practices board to reconcile its regulations with the legislative directive will necessitate an FPA amendment requiring strict environmental review of all forest practices.

I. The Forest Practices Act

Under the FPA, the forest practices board must classify forest practices according to environmental impact.(fn24) The greater the environmental impact, the more stringent the statutory requirements of DNR review and authorization. The class definitions also determine whether an included practice is subject to SEPA provisions.(fn25)

By rule, the forest practices board designates the practices that are included within each statutory class.(fn26) The board's authority to classify forest practices is limited only by the requirement that each practice be assessed in light of the statutory criteria. In exercising this authority, the board must satisfy the purposes and policies of the FPA.(fn27) The statutory structure of the Act implies that some forest practices will be subject to SEPA under the class definitions.(fn28)

A. The 1974 Act

The original Forest Practices Act of 1974(fn29) made no reference to SEPA, but, because SEPA was concurrently in effect, presumably all forest practices requiring the DNR approval were to be evaluated for possible SEPA review.(fn30) Environmental protection and maintenance of a healthy forest products industry was to be assured by the regulation of three classes of forest practices.(fn31) Of the three classes, only Class I practices were identified by their relationship to the environment, but notification of the DNR prior to conducting such a practice was not required.(fn32) By definition, Class II and III practices required an approved application and were differentiated from each other only by the period of time allowed for approval of an application.(fn33) Significantly, the statute did not describe the permissible environmental impact of practices to be included in either Class II or Class III.(fn34)

B. The 1975 Amendments to the FPA

The current Forest Practices Act, amended in 1975,(fn35) preserves the original purposes and policy statements,(fn36) but provides for four, instead of three, forest practices classes with more detailed environmental impact criteria,(fn37) and a complex notification-application system in place of the original application procedure.(fn38) The amended Act also grants specific class exemptions(fn39) from the SEPA requirement of an EIS.(fn40)

Initially, it is important to note that the legislature has at no time declared the Forest Practices Act exempt from SEPA.(fn41) Instead, the legislature amended the FPA to exempt three of the four classes of forest practices from EIS requirements.(fn42) The amended Act defines the classes with criteria related to environmental impact.(fn43) Arguably, the amended Act as a whole remains subject to SEPA, an attribute significant to the board's rules classifying forest practices.(fn44)

The FPA's statutory classes provide the guidelines to which the board's rules must conform. The amended Act defines Class I practices as minimal or specific practices(fn45) with no direct potential for damaging a public resource.(fn46) Conducting such practices requires neither notification of the DNR nor a permit.(fn47) Class II practices are those having less than ordinary potential for damaging a public resource.(fn48) Prior to commencing a Class II practice, the DNR must be notified, although no approval is needed.(fn49) In addition, forest practices under Class I and II are exempt from the SEPA's EIS requirement.(fn50)

The Act defines Class IV forest practices by their relationship to the environment, rather than to public resources.(fn51) Class IV excludes those practices determined to be Class I or II, but includes all other practices having a potential for substantial impact on the environment.(fn52) This class is not included in the EIS exemption; approval of Class IV applications requires agency evaluation under SEP A.(fn53)

Unlike the other forest practices classes, Class III contains no explicit environmental standard.(fn54) The Act directs that forest practices not otherwise contained in Classes I, II, or IV constitute Class III.(fn55) An application approved by the DNR is required.(fn56)

The definitions limit the permissible environmental impact of practices within each class and specifically exclude practices within other classes. As a result of the exclusiveness, classification of a forest practice requires consideration of the environmental standards provided for each class.(fn57) These environmental impact criteria, when considered with the EIS exemptions of Classes I, II, and III, seem to indicate legislative intent regarding the level of environmental scrutiny required in the board's rules.(fn58)

The addition of Class I, II, and III SEPA exemptions has proved confusing.(fn59) Simply stated, rules exempting any forest...