Washington forestland owners, environmentalists and tribes are divided over the shape, content and timeline of a proposed state rule defining what constitutes a fish habitat within a body of water. For small forestland owners in particular, the final rule that’s approved could further add to the disproportionate impact state policy already has on their working forests.
In 1999, the state legislature approved the Forests and Fish Law to protect salmon. One of its provisions created buffer zones around fish habitat prohibiting timber harvests. Policymakers have acknowledged that it disproportionately affects small forestland owners in part because their properties are in the lower elevations of watersheds where streams with fish habitat are wider – and as a result require larger buffers.
Whether or not there is a fish habitat in a water stream is determined by the water typing rule under the state Department of Natural Resources (DNR). Right now, there is only an interim rule in effect. Since 2011, the state Water Typing Rule Committee (WTRC) has looked at a permanent rule to replace it. According to the state Forest Practices Board’s May 9 minutes, forest farm owner and Washington Farm Forestry Association President (WFFA) member Ken Miller argued that the rules are “too complex for most small forest landowners to comprehend or follow in a meaningful way” (page 4).
However, there is disagreement over not only the rule’s language, but also the process by which a fish habitat is determined. There’s also conflict over whether more work needs to be done. At an Aug. 14 FPB meeting in Olympia, WFFA President Vick Mussleman said “we as an association believe that the work currently being done…is very important to the future management of all private forests in Washington and therefore should not be rushed.”
He added that WTRC should be given more time “to accurately complete its work,” including a new cost-benefit analysis (CBA) of three proposed draft rules. Mussleman told Lens that although DNR’s CBA already shows small forestland owners will be disproportionately affected any of all three proposals, the analysis was based on incorrect data and assumptions.
“This means, in my opinion, if it’s done it’s going to impact the small forestland owners even more,” he said.
However, Washington Forest Law Center attorney Peter Goldman has previously argued that the board has enough data right now to pass a permanent water type rule. At a May 8 board meeting, science panel member Joe Maroney, representing the Kalispel Tribe, expressed frustration over the 20-year-long process to arrive at a permanent rule.
In a June 24 memo to the Timber/Fish/Wildlife (TFW) Policy Committee, the Forest Practices Board requested that the committee reexamine whether to include potential criteria in the new rule sought by some stakeholders such as road water crossing structures, i.e. culverts, and an anadromous fish floor favored by Goldman and western Washington tribes.
TFW Policy Committee Co-chair Terra Rentz representing the Washington Department of Fish and Wildlife (WFW) told the board at its Aug. 14 meeting that with regards to including a fish floor the committee recommended it should be considered, but members “did feel very uncomfortable with that discussion and the questions as it was posed to us” due to the legal issues at stake. She added that the board should consult further with State Attorney General Bob Ferguson.
“None of us are legal advisors, and so we didn’t feel comfortable making that recommendation,” she said.
Regarding culverts, Rentz said the committee recommended that “additional water-crossing structured language not be included in the water typing system rule. An evaluation of potentially affected water-crossing structures would be further considered by policy, but it’s not an immediate need at this time.”
Small forestland owner Steve Brown told the board at its Aug. 14 meeting that although “some progress has indeed occurred” within a non-sanctioned subcommittee over some of the potential criteria, “there’s still multiple areas of dispute, and there still lots more work to be done. A successful resolution of water type rule issues must be based on open and honest collaboration at every stage of the process.”
Musseleman said: “The fact is, the environmental caucus says: ‘Go with what we got. We’re sayin, ‘Hey if we’re going to do it, let’s make sure what we’re doing is right and it’s based on sound science’.”
There is no timeline for when a permanent rule will be voted on.