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(continued) f the identification should be withdrawn or modified.
(5) A landowner that submits an application or notification in an area that has been identified as having a likelihood of future conversion to urban development within a ten-year period may request the department to reconsider the identification of the affected parcel. The department shall remove the identification if the landowner complies with (a) of this subsection and at least one from (b) or (c) of this subsection:
(a) The landowner submits a statement of intent not to convert to a use other than commercial timber operation for a period of ten years after completion of the forest practice. The statement shall be on a form prepared by the department and shall indicate the landowner is aware of the provisions of RCW 76.09.060 (3)(b); and
(b) The land is enrolled under the provisions of chapter 84.28, 84.33, or 84.34 RCW; or
(c) A written forest management plan for the land covering the next ten years has been reviewed and accepted by the department.
[Statutory Authority: RCW 76.09.040, 76.09.170 and chapter 34.05 RCW. 94-01-134, § 222-16-060, filed 12/20/93, effective 1/1/94. Statutory Authority: RCW 76.09.040, 76.09.050 and 34.05.350. 91-23-052, § 222-16-060, filed 11/15/91, effective 12/16/91.]
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222-16-070
Pesticide uses with the potential for a substantial impact on the environment.
*To identify forest practices involving pesticide uses that have the potential for a substantial impact on the environment, the department shall apply the process prescribed in this section. See WAC 222-16-050 (1)(a).
(1) Pesticide list - The department shall maintain a list of all pesticides registered under chapter 15.58 RCW for use in forest practices. The department shall conduct, in consultation with the departments of ecology, health, agriculture, and fish and wildlife, an annual review of the list for the purpose of including new pesticides and/or removing those pesticides which have been prohibited from use. The list shall be available to the public at each of the department's offices. A list of the department's offices and their addresses appears at WAC 332-10-030. In preparing the pesticide list, the department shall include information on the following characteristics:
(a) Active ingredients, name brand or trade mark, labeled uses, pesticide type, EPA-registration number;
(b) Toxicity of the pesticide based on the Environmental Protection Agency (EPA) label warning under 40 C.F.R. 156.10 (h)(1), listed as "caution," "warning," "danger," or "danger - poison" except as modified to consider aquatic or mammalian toxicity; and
(c) Whether the pesticide is a state restricted use pesticide for the protection of ground water under WAC 16-228-1231.
(2) Key for evaluating applications. To determine whether aerial application of a pesticide has the potential for a substantial impact on the environment, the department shall apply the following analysis:
KEY FOR EVALUATION OF SITE SPECIFIC USE OF AERIALLY APPLIED PESTICIDES
Question Question Resp Action
1 (a) Is the pesticide on the pesticide list (WAC 222-16-070(1))? Yes
No go to 2
go to 1(b)
1 (b) Is the pesticide being used under a Dept of Agriculture Experimental Use Permit (WAC 16-228-1460)? Yes
No Class III
Class IV Sp
2 Is the toxicity rating for the pesticide to be used "Danger - Poison” as designated in the pesticide list (WAC 222-16-070 (1)(b))? Yes
No Class IV Sp
go to 3(a)
3 (a) Is Bacillus thuringiensis (BT) the only pesticide being used on this application? Yes
No go to 3(b)
go to 4(a)
3 (b) Is there a Threatened or Endangered species or the critical habitat (Federal) or critical habitat (State) of a species within the application area that is susceptible to the BT strain being used? Yes
No Class IV Sp
Class III
4 (a) Is this operation occurring over ground water with a high susceptibility to contamination as specified in EPA 910/9-87-169 or in documentation provided by the department of ecology? Yes
No go to 4(b)
go to 5(a)
4 (b) Is this pesticide a state restricted use pesticide for the protection of ground water under WAC 16-228-1231? Yes
No Class IV Sp
go to 5(a)
5 (a) Is the operation adjacent (within 100 ft.) of surface water? Yes
No go to 5(b)
go to 5(e)
5 (b) Determine the toxicity rating from the pesticide list:
*Is the toxicity rating "Caution” or "Warning”? Yes
go to 5(c)
*Is the toxicity rating "Danger”? Yes go to 5(d)
5 (c) Is there a Group A or B water surface water system (WAC 246-290-020) intake OR a fish hatchery intake within one half mile downstream of the operation? Yes
No Class IV Sp
go to 5(e)
5 (d) Is there a Group A or B water surface system intake OR a fish hatchery intake within 1 mile downstream of the operation? Yes
No Class IV Sp
go to 5(e)
5 (e) Is the operation within 200 feet of the intake of a Group A or B spring water system? Yes
No Class IV Sp
go to 5(f)
5 (f) Is the operation applying a pesticide in a Type A or B wetland? Yes
No Class IV Sp
go to 6(a)
6 (a) Does any portion of the planned operation cover 240 or more contiguous acres? Pesticide treatment units will be considered contiguous if they are separated by less than 300 feet or treatment dates of adjacent units are less than 90 days apart. Yes
No Class IV Sp
go to 6(b)
6 (b) Is there a Threatened or Endangered species or the critical habitat (Federal) or critical habitat (State) of a species within the application area? Yes
No Class IV Sp
go to 6(c)
6 (c) If there is a special concern identified for this pesticide in the Board manual, does it apply to this application? Yes
No Class IV Sp
Class III
(3) Special concerns (see WAC 222-16-070 (2)6(c)) shall be evaluated by the department of agriculture. Information regarding special concerns shall be presented to the board for review. Approved special concerns shall be included in the board manual. Special concerns shall include situations where use of pesticides has the potential for a substantial impact on the environment, beyond those covered specifically in the key in subsection (2) of this section.
[Statutory Authority: RCW 76.09.040. 05-12-119, § 222-16-070, 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, § 222-16-070, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-16-070, filed 12/3/97, effective 1/3/98; 93-12-001, § 222-16-070, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-16-070, filed 7/2/92, effective 8/2/92.]
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222-16-080
Critical habitats (state) of threatened and endangered species.
(1) Critical habitats (state) of threatened or endangered species and specific forest practices designated as Class IV-Special are as follows:
(a) Bald eagle (Haliaeetus leucocephalus) - harvesting, road construction, aerial application of pesticides, or site preparation within 0.5 mile of a known active nest site, documented by the department of fish and wildlife, between the dates of January 1 and August 15 or 0.25 mile at other times of the year; and within 0.25 mile of a communal roosting site. Communal roosting sites shall not include refuse or garbage dumping sites.
(b) Gray wolf (Canis lupus) - harvesting, road construction, or site preparation within 1 mile of a known active den site, documented by the department of fish and wildlife, between the dates of March 15 and July 30 or 0.25 mile from the den site at other times of the year.
(c) Grizzly bear (Ursus arctos) - harvesting, road construction, aerial application of pesticides, or site preparation within 1 mile of a known active den site, documented by the department of fish and wildlife, between the dates of October 1 and May 30 or 0.25 mile at other times of the year.
(d) Mountain (woodland) caribou (Rangifera tarandus) - harvesting, road construction, aerial application of pesticides, or site preparation within 0.25 mile of a known active breeding area, documented by the department of fish and wildlife.
(e) Oregon silverspot butterfly (Speyeria zerene hippolyta) - harvesting, road construction, aerial or ground application of pesticides, or site preparation within 0.25 mile of an individual occurrence, documented by the department of fish and wildlife.
(f) Peregrine falcon (Falco peregrinus) - harvesting, road construction, aerial application of pesticides, or site preparation within 0.5 mile of a known active nest site, documented by the department of fish and wildlife, between the dates of March 1 and July 30; or harvesting, road construction, or aerial application of pesticides within 0.25 mile of the nest site at other times of the year.
(g) Sandhill crane (Grus canadensis) - harvesting, road construction, aerial application of pesticides, or site preparation within 0.25 mile of a known active nesting area, documented by the department of fish and wildlife.
(h) Northern spotted owl (Strix occidentalis caurina)
(i) Within a SOSEA boundary (see maps in WAC 222-16-086), except as indicated in (h)(ii) of this subsection, harvesting, road construction, or aerial application of pesticides on suitable spotted owl habitat within a median home range circle that is centered within the SOSEA or on adjacent federal lands.
(ii) Within the Entiat SOSEA, harvesting, road construction, or aerial application of pesticides within the areas indicated for demographic support (see WAC 222-16-086(2)) on suitable spotted owl habitat located within a median home range circle that is centered within the demographic support area.
(iii) Outside of a SOSEA, harvesting, road construction, or aerial application of pesticides, between March 1 and August 31 on the seventy acres of highest quality suitable spotted owl habitat surrounding a northern spotted owl site center located outside a SOSEA. The highest quality suitable habitat shall be determined by the department in cooperation with the department of fish and wildlife. Consideration shall be given to habitat quality, proximity to the activity center and contiguity.
(iv) Small parcel northern spotted owl exemption. Forest practices proposed on the lands owned or controlled by a landowner whose forest land ownership within the SOSEA is less than or equal to 500 acres and where the forest practice is not within 0.7 mile of a northern spotted owl site center shall not be considered to be on lands designated as critical habitat (state) for northern spotted owls.
(i) Western pond turtle (Clemmys marmorata) - harvesting, road construction, aerial application of pesticides, or site preparation within 0.25 mile of a known individual occurrence, documented by the department of wildlife.
(j) Marbled murrelet (Brachyramphus marmoratus)
(i) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction within an occupied marbled murrelet site.
(ii) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction within suitable marbled murrelet habitat within a marbled murrelet detection area.
(iii) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction within suitable marbled murrelet habitat containing 7 platforms per acre outside a marbled murrelet detection area.
(iv) Harvesting, other than removal of down trees outside of the critical nesting season, or road construction outside a marbled murrelet detection area within a marbled murrelet special landscape and within suitable marbled murrelet habitat with 5 or more platforms per acre.
(v) Harvesting within a 300 foot managed buffer zone adjacent to an occupied marbled murrelet site that results in less than a residual stand stem density of 75 trees per acre greater than 6 inches in dbh; provided that 25 of which shall be greater than 12 inches dbh including 5 trees greater than 20 inches in dbh, where they exist. The primary consideration for the design of managed buffer zone widths and leave tree retention patterns shall be to mediate edge effects. The width of the buffer zone may be reduced in some areas to a minimum of 200 feet and extended to a maximum of 400 feet as long as the average of 300 feet is maintained.
(vi) Except that the following shall not be critical habitat (state):
(A) Where a landowner owns less than 500 acres of forest land within 50 miles of saltwater and the land does not contain an occupied marbled murrelet site; or
(B) Where a protocol survey (see WAC 222-12-090(14)) has been conducted and no murrelets were detected. The landowner is then relieved from further survey requirements. However, if an occupied marbled murrelet site is established, this exemption is void.
(2) The following critical habitats (federal) designated by the United States Secretary of the Interior or Commerce, or specific forest practices within those habitats, have been determined to have the potential for a substantial impact on the environment and therefore are designated as critical habitats (state) of threatened or endangered species.
(3) For the purpose of identifying forest practices which have the potential for a substantial impact on the environment with regard to threatened or endangered species newly listed by the Washington fish and wildlife commission and/or the United States Secretary of the Interior or Commerce, the department shall after consultation with the department of fish and wildlife, prepare and submit to the board a proposed list of critical habitats (state) of threatened or endangered species. This list shall be submitted to the board within 30 days of the listing of the species. The department shall, at a minimum, consider potential impacts of forest practices on habitats essential to meeting the life requisites for each species listed as threatened or endangered. Those critical habitats (state) adopted by the board shall be added to the list in subsection (1) of this section. See WAC 222-16-050 (1)(b).
(4) For the purpose of identifying any areas and/or forest practices within critical habitats (federal) designated by the United States Secretary of the Interior or Commerce which have the potential for a substantial impact on the environment, the department shall, after consultation with the department of fish and wildlife, submit to the board a proposed list of any forest practices and/or areas proposed for inclusion in Class IV - Special forest practices. The department shall submit the list to the board within 30 days of the date the United States Secretary of the Interior or Commerce publishes a final rule designating critical habitat (federal) in the Federal Register. Those critical habitats included by the board in Class IV - Special shall be added to the list in subsection (2) of this section. See WAC 222-16-050 (1)(b).
(5)(a) Except for bald eagles under subsection (1)(a) of this section, the critical habitats (state) of threatened and endangered species and specific forest practices designated in subsections (1) and (2) of this section are intended to be interim. These interim designations shall expire for a given species on the earliest of:
(i) The effective date of a regulatory system for wildlife protection referred to in (b) of this subsection or of substantive rules on the species.
(ii) The delisting of a threatened or endangered species by the Washington fish and wildlife commission and by the United States Secretary of Interior or Commerce.
(b) The board shall examine current wildlife protection and department authority to protect wildlife and develop and recommend a regulatory system, including baseline rules for wildlife protection. To the extent possible, this system shall:
(i) Use the best science and management advice available;
(ii) Use a landscape approach to wildlife protection;
(iii) Be designed to avoid the potential for substantial impact to the environment;
(iv) Protect known populations of threatened and endangered species of wildlife from negative effects of forest practices consistent with RCW 76.09.010; and
(v) Consider and be consistent with recovery plans adopted by the department of fish and wildlife pursuant to RCW 77.12.020(6) or habitat conservation plans or 16 U.S.C. 1533(d) rule changes of the Endangered Species Act.
(6) Regardless of any other provision in this section, forest practices applications shall not be classified as Class IV-Special based on critical habitat (state) (WAC 222-16-080 WAC 222-16-050 (1)(b)) for a species, if the forest practices are consistent with one or more of the following:
(a) Documents addressing the needs of the affected species provided such documents have received environmental review with an opportunity for public comment under the National Environmental Policy Act, 42 U.S.C. section 4321 et seq.:
(i) A habitat conservation plan and incidental take permit; or an incidental take statement covering such species approved by the Secretary of the Interior or Commerce pursuant to 16 U.S.C. § 1536(b) or 1539(a); or
(ii) An "unlisted species agreement" covering such species approved by the U.S. Fish and Wildlife Service or National Marine Fisheries Service; or
(iii) Other conservation agreement entered into with a federal agency pursuant to its statutory authority for fish and wildlife protection that addresses the needs of the affected species; or
(iv) A rule adopted by the U.S. Fish and Wildlife Service or the National Marine Fisheries Service for the conservation of an affected species pursuant to 16 U.S.C. section 1533(d); or
(b) Documents addressing the needs of the affected species so long as they have been reviewed under the State Environmental Policy Act;
(i) A landscape management plan; or
(ii) Another cooperative or conservation agreement entered into with a state resource agency pursuant to its statutory authority for fish and wildlife protection;
(c) A special wildlife management plan (SWMP) developed by the landowner and approved by the department in consultation with the department of fish and wildlife;
(d) A bald eagle management plan approved under WAC 232-12-292;
(e) A landowner option plan (LOP) for northern spotted owls developed pursuant to WAC 222-16-100(1);
(f) A cooperative habitat enhancement agreement (CHEA) developed pursuant to WAC 222-16-105; or
(g) A take avoidance plan issued by the U.S. Fish and Wildlife Service or the National Marine Fisheries Service prior to March 20, 2000.
In those situations where one of the options above has been used, forest practices applications may still be classified as Class IV-Special based upon the presence of one or more of the factors listed in WAC 222-16-050(1), other than critical habitat (state) for the species covered by the existing plan.
(7) The department, in consultation with the department of fish and wildlife, shall review each SOSEA to determine whether the goals for that SOSEA are being met through approved plans, permits, statements, letters, or agreements referred to in subsection (6) of this section. Based on the consultation, the department shall recommend to the board the suspension, deletion, modification or reestablishment of the applicable SOSEA from the rules. The department shall conduct a review for a particular SOSEA upon approval of a landowner option plan, a petition from a landowner in the SOSEA, or under its own initiative.
(8) The department, in consultation with the department of fish and wildlife, shall report annually to the board on the status of the northern spotted owl to determine whether circumstances exist that substantially interfere with meeting the goals of the SOSEAs.
[Statutory Authority: RCW 76.09.040. 05-12-119, § 222-16-080, 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, § 222-16-080, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-24-091, § 222-16-080, filed 12/3/97, effective 1/3/98; 97-15-105, § 222-16-080, filed 7/21/97, effective 8/21/97. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-16-080, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 93-12-001, § 222-16-080, filed 5/19/93, effective 6/19/93. Statutory Authority: RCW 76.09.040, 76.09.050 and chapter 34.05 RCW. 92-15-011, § 222-16-080, filed 7/2/92, effective 8/2/92.]
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222-16-085
Northern spotted owl habitats.
(1) Suitable spotted owl habitat means forest stands which meet the description of old forest habitat, sub-mature habitat or young forest marginal habitat found in (a) and (b) of this subsection. Old forest habitat is the highest quality, followed in descending order by sub-mature habitat and young forest marginal habitat.
(a) Old forest habitat means habitat that provides for all the characteristics needed by northern spotted owls for nesting, roosting, foraging, and dispersal, described as stands with:
(i) A canopy closure of 60% or more and a layered, multispecies canopy where 50% or more of the canopy closure is provided by large overstory trees (typically, there should be at least 75 trees greater than 20 inches dbh per acre, or at least 35 trees 30 inches dbh or larger per acre); and
(ii) Three or more snags or trees 20 inches dbh or larger and 16 feet or more in height per acre with various deformities such as large cavities, broken tops, dwarf mistletoe infections, and other indications of decadence; and
(iii) More than two fallen trees 20 inches dbh or greater per acre and other woody debris on the ground.
(b) Sub-mature habitat and young forest marginal habitat. Sub-mature habitat provides all of the characteristics needed by northern spotted owls for roosting, foraging, and dispersal. Young forest marginal habitat provides some of the characteristics needed by northern spotted owls for roosting, foraging, and dispersal. Sub-mature habitat and young forest marginal habitat stands can be characterized based on the forest community, canopy closure, tree density and height, vertical diversity, snags and cavity trees, dead and down wood, and shrubs or mistletoe infection. They are described in the following tables:
(i) Western Washington spotted owl sub-mature and young forest marginal habitat characteristics.
Characteristic Habitat Type
Sub-Mature Young Forest Marginal
Forest Community conifer-dominated or conifer-hardwood (greater than or equal to 30% conifer) conifer-dominated or conifer-hardwood (greater than or equal to 30% conifer)
Canopy Closure greater than or equal to 70% canopy closure greater than or equal to 70% canopy closure
115-280 trees/acre (greater than or equal to 4 inches dbh) with 115-280 trees/acre (greater than or equal to 4 inches dbh) with
Tree Density and Height dominants/codominants greater than or equal to 85 feet high
OR dominants/codominants greater than or equal to 85 feet high
OR
Vertical Diversity dominants/codominants greater than or equal to 85 feet high with dominants/codominants greater than or equal to 85 feet high with
2 or more layers and 2 or more layers and
25 - 50% intermediate trees 25 - 50% intermediate trees
Snags/Cavity Trees greater than or equal to 3/acre (greater than or equal to 20 inches dbh and 16 feet in height)
greater than or equal to 2/acre (greater than or equal to 20 inches dbh and 16 feet in height) OR greater than or equal to 10% of the ground covered with 4 inch diameter or larger wood, with 25-60% shrub cover
Dead, Down
Wood N/A
Shrubs N/A
The values indicated for canopy closure and tree density may be replaced with a quadratic mean diameter of greater than 13 inches and a basal area of greater than 100.
(ii) Eastern Washington spotted owl sub-mature and young forest marginal habitat characteristics.
Habitat Type
Characteristic Sub-Mature Young Forest Marginal
(closed canopy) Young Forest Marginal
(open canopy)
Forest Community greater than or equal to 40% fir greater than or equal to 40% fir greater than or equal to 40% fir
Tree Density and Height 110-260 trees/acre (greater than or equal to 4 inches dbh) with 100 - 300 trees/acre (greater than or equal to 4 inches dbh) 100 - 300 trees/acre (greater than or equal to 4 inches dbh)
dominants/codominants greater than or equal to 90 feet high
OR dominants/codominants equal to or greater than 70 feet high dominants/codominants equal to or greater than 70 feet high
Vertical Diversity dominants/codominants greater than or equal to 90 feet high with 2 or more layers and 2 or more layers 2 or more layers
25 - 50% intermediate trees 25 - 50% intermediate trees 25 - 50% intermediate trees
Canopy Closure greater than or equal to 70% canopy closure greater than or equal to 70% canopy closure greater than or equal to 50% canopy closure
Snags/Cavity Trees greater than or equal to 3/acre (greater than or equal to 20 inches dbh 16 feet in height)
OR N/A 2/acre or more (greater than or equal to 20 inches dbh 16 feet in height)
Mistletoe high or moderate infection N/A high or moderate infection
Dead, Down Wood greater than or equal to 5% of the ground covered with 4 inch diameter or larger wood
N/A N/A
The values indicated for canopy closure and tree density may be replaced with the following:
(A) For sub-mature a quadratic mean diameter of greater than 13 inches and a relative density of greater than 44;
(B) For young forest marginal a quadratic mean diameter of greater than 13 inches and a relative density of greater than 28.
(2) Spotted owl dispersal habitat means habitat stands that provide the characteristics needed by northern spotted owls for dispersal. Such habitat provides protection from the weather and predation, roosting opportunities, and clear space below the forest canopy for flying. Timber stands that provide for spotted owl dispersal have the following characteristics:
(a) For western Washington, timber stands 5 acres in size or larger with:
(i) 70% or more canopy cover; and
(ii) 70% or more of the stand in conifer species greater than 6 inches dbh; and
(iii) A minimum of 130 trees per acre with a dbh of at least 10 inches or a basal area of 100 square feet of 10 inch dbh or larger trees; and
(iv) A total tree density of 300 trees per acre or less; and
(v) A minimum of 20 feet between the top of the understory vegetation and the bottom of the live canopy, with the lower boles relatively clear of dead limbs.
(b) For eastern Washington, timber stands 5 acres in size or larger with:
(i) 50% or more canopy closure; and
(ii) A minimum of 50 conifer trees per acre, with a dbh of 6 inches or more in even-aged stands or 4 inches or more in uneven-aged stands, and an average tree height of 65 feet or more; and
(iii) Total tree density of 200 trees per acre or less; and
(iv) A minimum of 20 feet between the top of the understory vegetation and the bottom of the live canopy, with the lower boles relatively clear of dead limbs; or
(v) Conifer stands with a quadratic mean diameter of 9 inches or more and a relative density of 33 or more or a canopy closure of 55% or more.
(c) Suitable spotted owl habitat provides all of the required characteristics needed by spotted owls for dispersal.
(d) Landowners may submit information to support an alternate definition of dispersal habitat for review and approval by the department in consultation with the department of fish and wildlife.
[Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-16-085, filed 5/31/96, effective 7/1/96.]
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222-16-086
Northern spotted owl special emphasis areas and goals.
"Spotted owl special emphasis areas (SOSEA)" means the following geographic areas and the associated goals as mapped. Detailed maps of the SOSEAs indicating the boundaries and goals are available from the department at its regional offices.
[Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-16-086, filed 5/31/96, effective 7/1/96.]
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222-16-087
Marbled murrelet special landscape.
Marbled murrelet special landscape means the following geographic area as mapped. A detailed map of the marbled murrelet special landscape indicating the boundaries is available from the department at its regional offices.
Southwest Washington Special Landscape
[Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-15-105, § 222-16-087, filed 7/21/97, effective 8/21/97.]
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222-16-100
Planning options for the northern spotted owl.
(1) Landowner option plans for the northern spotted owl. Landowner option plans (LOPs) are intended to provide landowners with a mechanism, entered into voluntarily, to contribute to the protection of northern spotted owls by considering the needs of overall population maintenance or dispersal habitat across a defined geographic area. Forest practices applications that are in an area covered by an LOP, and that are consistent with the LOP, will not be classified as Class IV-Special on the basis of critical habitat (state) or critical habitat (federal) for the northern spotted owl. This does not preclude classification as Class IV-Special because of the presence of other factors listed in WAC 222-16-050(1).
(a) Required elements of LOPs. The level of detail to be included in a LOP will depend on the area of ownership involved, the time period for which the plan will be in effect, and the complexity of the management strategy. Nevertheless, each plan shall contain the elements set forth in this subsection.
(i) Goals and objectives. The specific goals and objectives for the landowner's contributions proposed under the LOP shall be developed by the landowner and approved by the department in consultation with the department of fish and wildlife based on the following:
(A) Mitigation under the plan must be reasonable and capable of being accomplished;
(B) To the maximum extent practicable, the plan must minimize and mitigate significant adverse impacts caused by, and identified in, the plan on individual northern spotted owl site centers or the ability of the SOSEA to meet SOSEA goals. Specific short (one to five-year) and long (greater than five-year) term goals and objectives for the LOP should be clearly stated, where applicable; and
(C) LOPs should be designed to achieve an appropriate contribution from nonfederal lands toward meeting SOSEA goals and are intended to be an efficient and effective alternative to site-by-site management planning. In Eastern Washington, LOPs must also consider the need to protect the forests from catastrophic loss from wildfire, insects, and diseases.
(ii) Other required elements:
(A) A description of the planning area. The LOP planning area shall include a sufficient amount of the landowner's forest land within the SOSEA to meet the goals and objectives of the plan.
(B) A description of the physical features in the planning area (e.g., geology, topography, etc.).
(C) The current habitat status. Suitable spotted owl habitat should be categorized and mapped as old forest, sub-mature, young forest marginal, or dispersal.
(D) The current species status. All status 1, 2, and 3 northern spotted owl site centers and the associated median home range circles that overlap any of the landowner's ownership within the LOP boundary must be mapped.
(E) Management proposals and relevant operations plans.
(F) Projected suitable habitat development.
(G) A plan for training.
(H) A monitoring program.
(I) Reporting standards.
(J) The conditions under which the LOP may be modified.
(K) The term of the LOP and conditions for termination. The term of the LOP shall be sufficient to meet its goals and objectives. The conditions of the LOP run with the land unless the LOP specifies alternative means to achieve the LOP goals and objectives upon mid-term sale or transfer. In addition to any other termination provisions in the LOP, plans may be terminated by mutual agreement of the landowner and the department.
(b) Approval of LOPs. Upon receipt of a landowner option plan, the department shall circulate the plan to the department of fish and wildlife, affected Indian tribes, local government entities, other forest landowners in the SOSEA, and the public for a thirty-day review and comment period. The department may extend this review period for up to thirty additional days. Within ninety days of receipt of the plan, the department shall review the comments and approve or disapprove the plan or submit the plan to the landowner to revise as appropriate. The department, after consultation with the department of fish and wildlife, shall approve the plan if:
(i) The plan contains all of the elements required under this section;
(ii) The plan is expected to be effective in meeting its goals and objectives;
(iii) The plan will not have a probable significant adverse impact on the ability of the SOSEA to meet its goals; and
(iv) The plan will not appreciably reduce the likelihood of the survival and recovery of the northern spotted owl in the wild.
In making its determination under this subsection, the department shall consider the direct, indirect, and cumulative effects of the plan; both the short-term and long-term effects of the plan; and whether local, state, or federal land management, regulatory, or nonregulatory requirements will mitigate identified significant adverse impacts. If the department does not approve the plan, or approves it over the objections of the department of fish and wildlife, the department shall set forth in writing a concise explanation of the reasons for its action.
(c) Enforcement of LOPs. The department shall review all applications and notifications from the landowner, proposed within the plan area, for consistency with the plan. Any applications or notifications found to be inconsistent with the plan shall be returned to the landowner for modification. After landowner review, applications and notifications which are not consistent with the plan shall be classified as Class IV-Special.
(2) See WAC 222-16-105 for CHEAs.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040,[76.09.]050 , [76.09.]370, 76.13.120(9). 01-12-042, § 222-16-100, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-15-105, § 222-16-100, filed 7/21/97, effective 8/21/97. Statutory Authority: Chapters 76.09 and 34.05 RCW. 96-12-038, § 222-16-100, filed 5/31/96, effective 7/1/96.]
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222-16-105
Cooperative habitat enhancement agreements.
(1) Purpose. A cooperative habitat enhancement agreement (CHEA) is intended to remove disincentives for landowners who create, enhance, or maintain habitat for the northern spotted owl or marbled murrelet by providing them with protection against future spotted owl or marbled murrelet rules caused by their enhancement activities. A CHEA is an agreement between the department and a landowner, developed in cooperation with the department of fish and wildlife, for the purpose of creating, enhancing, or maintaining northern spotted owl habitat and/or marbled murrelet habitat. The agreement will apply only to forest land identified by the landowner:
(a) For northern spotted owls, outside of the median home range circles of northern spotted owl site centers in existence at the time of implementation.
(b) For marbled murrelets, any current unoccupied or potential future habitat.
(2) Authority. Outside of the median home range circles of northern spotted owls or an occupied marbled murrelet site, the department, in consultation with the department of fish and wildlife, may enter into agreements with nonfederal landowners to create, enhance, or maintain habitat that the northern spotted owl and/or the marbled murrelet can be expected to utilize. During the term of these agreements, forest practices covered by the agreements shall not be classified as Class IV-Special on the basis of critical habitat (state) or critical habitat (federal) for the northern spotted owl or the marbled murrelet. This does not preclude classification as Class IV-Special because of the presence of other factors listed in WAC 222-16-050(1).
(3) Baseline.
(a) Each agreement shall identify a baseline level of habitat, and the department shall not permit forest practices that reduce the habitat below the baseline during the term of the agreement.
(b) For northern spotted owls, the baseline may range from zero habitat to the overall levels of suitable spotted owl habitat and dispersal habitat that existed across the land in question at the time the agreement is entered into.
(c) For marbled murrelets, the baseline may range from zero habitat to the overall levels of suitable marbled murrelet habitat that existed across the land in question at the time the agreement is entered into.
(d) The department shall determine, working with the landowner and in consultation with the department of fish and wildlife, the appropriate baseline, taking into consideration:
(i) The size of the landowner's ownership and the ability of the landowner to maintain habitat conditions across the landscape in question over time;
(ii) The overall benefits of the agreement to the northern spotted owl or marbled murrelet including both the proposed measures to create, enhance, or maintain habitat and the proposed baseline levels; and
(iii) The term of the agreement.
(4) Form and content of CHEAs.
(a) The department shall, in consultation with the department of fish and wildlife, have the authority to define the form and content of CHEAs. The form and content may vary among agreements, but each must provide sufficient information for the department, the public, and other reviewers to understand and evaluate the agreement against the standards established under this section.
(b) For northern spotted owls, in addition to the elements required by the department, each agreement shall include a plan to avoid harvesting, road construction, or the aerial application of pesticides, between March 1 and August 31, on the seventy acres of highest quality suitable spotted owl habitat surrounding any known northern spotted owl site centers on lands covered by the agreement.
(5) Approval of a CHEA. Upon receipt of a CHEA, the department shall circulate the agreement to the department of fish and wildlife, affected Indian tribes, local government entities, other forest landowners in the SOSEA (if the CHEA is in a SOSEA), and the public for review and comment. Within sixty days of receipt of the agreement, the department shall review the comments and approve or disapprove the agreement or submit the agreement to the landowner to revise as appropriate. The department, after consultation with the department of fish and wildlife, may approve the agreement if the agreement will create, enhance, or maintain habitat conditions for:
(a) The northern spotted owl in a manner that provides a measurable contribution toward meeting the goals of the SOSEA or a measurable benefit to northern spotted owls outside SOSEAs.
(b) The marbled murrelet in a manner that provides a measurable benefit to the species.
(6) Enforcement of CHEAs. The department shall review all applications and notifications from the landowner, proposed within the agreement area, for consistency with the agreement. Any applications or notifications found to be inconsistent with the agreement shall be returned to the landowner for modification. After landowner review, applications and notifications which are not consistent with the agreement shall be classified based on the rules in effect at the time of application and without any of the benefits of the agreement.
[Statutory Authority: Chapter 34.05 RCW, RCW 76.09.040,[76.09.]050 , [76.09.]370, 76.13.120(9). 01-12-042, § 222-16-105, filed 5/30/01, effective 7/1/01. Statutory Authority: RCW 76.09.040 and chapter 34.05 RCW. 97-15-105, § 222-16-105, filed 7/21/97, effective 8/21/97.]