defining a proposal in the forested environment problems and regulatory consequences

DEFINING A PROPOSAL IN THE FORESTED ENVIRONMENT

PROBLEMS AND REGULATORY CONSEQUENCES

CHOICES

• Forestry operation? (harvest trees, reforest, keep as forestland)

OR

• Conversion? (harvest trees, convert to, e.g., condos)

Problems in Defining a Forest “Proposal”

• Logging can be a “proposal” in and of itself

• Logging can be a prelude to something larger, e.g., conversion to a housing development

Regulatory Consequences

• Forestry Operation

• Conversion to a Non-

Forest Use

• No SEPA• The State Regulates

• SEPA applies• Local Governments

Are Supposed To Regulate

Problems in Defining a Forest “Proposal”

• Who gets to say whether the proposal is regulated as a forestry operation or a conversion? Landowner? State?

• How do we give landowners the flexibility to change their minds yet at the same time encourage them to go through SEPA and be regulated by local governments when appropriate?

Policies

• Encourage landowners to keep their land as forestland

• Protect the environment

• Protect a viable timber industry

Regulatory Background

• Forest Practice =

• Activity

• On or directly pertaining to

• Forestland• Harvesting, growing, processing of timber

Regulatory Background

• Forestland =

• land capable of producing a merchantable stand of timber AND

• not being used in a use incompatible with timber growing

• absence of trees not controlling

• zoning not controlling

• private covenants don’t control

What’s a forest practice?

• Harvesting

• Reforestation

• Road building

• Brush control

Regulatory Background

• Four Classes of Forest Practices

• Class I

• Class II - III

• Class I - IV

• No permit/least impact on the environment

• Permit required/ increasing impact on the environment

Regulatory Background

• Class IV • Potential for substantial impact

• The only class of forest practices that undergoes SEPA review/All other classes are exempt from SEPA by statute

Regulatory Background

• Class IV-Special =• “special

circumstances” present • potential for

substantial impact on the environment

• spotted owl habitat

• Class IV-General• conversion to a non-

forest use

Regulatory Background

• Class IV

-Generals =

• conversion of forestland to a use incompatible with timber growing

• timber harvesting/road building within UGAs or ALTCs except where landowner provides documentation

• landowner declaration• platted land (RCW

58.17)

Regulatory BackgroundWho defines the “proposal”?

• forest practices within UGAs or ALTCs

• conversion declared on application

• platted

• Landowner defines

• Landowner defines

• state defines as a matter of law

Regulatory BackgroundWho Is Supposed to Regulate?

• The State• forestry operations• Class I, II, and III

forest practices

• Local governments• conversions• Class IV-Generals

Regulatory BackgroundWho Actually Regulates?

• The State

• Forestry Operations• Conversions in most

jurisdictions

• Exceptions –IV-Gs• Spokane County• Thurston County• King County• Clark County• Port Townsend

Regulatory Background

• Why are Class I, II, and III exempt from SEPA?

• Policy choice by Legislature

• Forest Practices Act and SEPA are environmental protection statutes–but with different approaches

Regulatory Background

• Forest Practices Act

• Actual, substantive protection

• focus on four elements of the environment

• SEPA

• primarily procedural

• focuses on all elements of the environment

Regulatory Background

• Forest Practices Act

• protection of the environment

• protection of viable timber industry

• retention of forestland

• SEPA

• protection of the environment

• use practicable means/social, economic—future

Regulatory Bottom Line

• Forestry Operations

• Only one class goes

through SEPA

• State regulates

• Conversions

• Reviewed under SEPA

• Local governments supposed to regulate

A Problem – Landowners won’t admit they’re converting

• Why?

• Don’t want to go through SEPA

• Don’t want to work with local governments

The Fix ??– The FPA “Stick”

• Six year moratorium

• Reforestation Obligation

The “Legal Loophole”?

• Local governments may lift moratorium

• Policy: Local government control

• Rationale: Landowners will eventually have to go through SEPA/GMA anyway

The “Legal Loopholes”

• Law relies on landowners declarations as to whether “proposal” is to convert

• Policy: If you force landowners to declare “conversion” and/or go through SEPA for a conversion, they are more likely to convert

Landowners Undecided at the Time of Application

• Policy - give them flexibility and encourage them to keep land as forestland

• Policy - Extra expense of SEPA will force some landowners to choose development

• Policy - Forest Practices Act–protection measures already developed by FPB v. ad hoc protection under SEPA

How do we know if the land is being converted?

• Application: State generally goes by landowner’s declaration

• Extrinsic evidence: Evidence beyond landowner’s declaration of “no convert” on application

• (Subdivision applications, other permits)

How do we know if the land has been converted?

• When is “forestland” no longer “forestland”?

--capable of supporting a merchantable stand of timber

--if declared “conversion but not actually converted within 3 years—must reforest

KREGER LAKE (1995)

• FACTS• 726 acre holding/Pierce County

• LO’s First “proposal” – 700 houses/ golf course/726 acres – would have required subdivision (RCW 58.17) & infrastructure

• LO’s Second “proposal” – 20 acre tracts/Assessor’s Plat (RCW 58.18)–no infrastructure

Kreger Lake

• 20 acre tracts marketed as home sites

• CCRs “residential community”

• LO Granted easements for roads, utilities

• five tracts sold/4 homes

• LO’s Third “Proposal”

• tracts not selling–timber only sold

Kreger Lake

• 4th Proposal – Timber Owner (Logger)

• forestry operation/320 acres (unsold land)

• non-conversion

• state approved as a non-conversion III

• Homeowners Assoc. & two neighbors appealed

• stay denied/trees felled by hearing

Kreger Lake – Was this actually a conversion?

• FPAB said “no”/upheld permit–forestry operation

Kreger Lake – Was this actually a conversion?

• Landowner’s view - no conversion

• “I’ve changed my mind”/lots not selling

• Neighbors’ view

• “Still being advertised as home sites”

• Homeowners’ Assoc. View

• Landowner retained majority vote/covenants disputed

Kreger Lake – Was this actually a conversion?

• FPAB reasoning• 20 acre tracts still “forestland”—home on

20 acres not necessarily a conversion—not incompatible with timber growing (policy—forestland retention)

• Uncertainty of future “proposals”—“future events…mired in speculation”

Kreger Lake – Dissent

• Should have been a Class IV-General/subject to SEPA

• “Duck Rule” - “Platted” includes Assessor’s Plat – RCW 58.18

• (Legislature later endorsed state’s view to the contrary–only RCW 58.17)

Is it a Conversion? Bottom Line

• Generally–state will go by landowner’s declaration

• Law contemplates that landowner’s mind can change/what happened before isn’t a predictor of what will happen in the future

• Unless actually converted within three years –never loses character as “forestland”

CASE UPDATE

• Alpine Lakes Protection Society (ALPS) v. Department of Ecology – Court of Appeals, Div. II

• May affect more than forest practices• Issue #1: Are “proposals” that are exempt

from SEPA by statute really exempt?• Issue #2: How do you define a

“proposal”?

CASE UPDATE – Challenge to “New” Ecology Rules

• Ecology’s Pre 2003 Rules

• statutorily exempt activities were potentially subject to SEPA

• statutorily exempt activities affected include……………………

Case update

• Certain irrigation projects. RCW 43.21.035• Class I, II, and III forest practices. RCW

43.21C.037; RCW 76.09.050(1)• School closures. RCW 43.21C.038• Air operating permits. RCW 43.21C.0381• Watershed Restoration/Fish Enhancement

Projects. RCW 43.21C.0382• Waste discharge permits. RCW 43.21C.0383• Annexations. RCW 43.21C.222

ALPS v. Ecology - update

• Exempt by Statute

• Legislature proclaims activities are exempt

• Regardless of environmental consequences

• Exempt by Ecology Rule

• Ecology proclaims activities are exempt

• limited to activities that are NOT potential major actions significantly affecting environment

• RCW 43.21C.110(1)(a)

ALPS v. Ecology - Update

• Exception to activities made exempt by Ecology rule –

• WAC 197-11-305(1)

ALPS v. Ecology - Update

• WAC 197-11-305(1)

• Even if proposal is exempt by Ecology rule (rule of categorical exemptions) proposal is NOT exempt if:

Proposals exempt by Ecology rule NOT exempt if the following is true

• The proposal is a segment of a proposal that includes:

• ii) series of exempt actions, physically or functionally related, together have probable significant adverse impact

Problem with former Ecology rules

• WAC 197-11-305 (exception to the rule-based exemptions) applied to statutorily exempt activities, not just activities exempt by Ecology rule

Ecology changed its rules

• 2003 Amendments

• Deleted statutorily exempt activities from its list of categorically exempted activities

• RESULT: Activities exempt by statute are no longer subject to SEPA by Ecology rules

Result = Rule Challenge

• ALPS filed rule challenge in Thurston County Superior Court

• ALPS lost in Thurston County/Ecology’s 2003 Rule amendments upheld

• Now on appeal to Div. II

Consequence = Expansion of meaning of “proposal” under SEPA

• Rule 305 only applies where “proposal is a segment of a proposal”

• The more the term “proposal” is stretched, the more SEPA can potentially apply

Case Law Confusion

• Snohomish County v. State (1993)

• Rule 305 = “cumulative effects” rule

• Plum Creek Timber v. FPAB CLARIFIED

• Rule 305 = “segmentation” rule

Consequence = Expansion of meaning of “proposal” under SEPA

• Rule 305(1)(b)(ii) =• “proposal segment of a proposal”

• series of exempt actions

• physically functionally related

• together have probable significant adverse impacts on environment.

ALPS’ arguments

• One proposal is a segment of another proposal if

• geographic proximity; • past and future planned operations; • hydrologic, silvicultural, geologic,

wildlife, cumulative effects, recreational or visual connections;

Same Arguments/Different Statutorily Exempt Activities

• One School Closure is a segment of an overall construction and rehabilitation project for the District–subject to SEPA

• One appropriation of 50 cfs of water for certain irrigation projects is a segment of all such appropriations in an area – subject to SEPA

Questions????

• Cheryl Nielson

• Office of the Attorney General

• Natural Resources Division

• 306/586-0700

• CherylN@atg.wa.gov