Forests and Fish Rule – Background

Jim Hotvedt, Adaptive Management Program Administrator

This month we’re adding a new feature to help keep our readers up to date with what’s happening with Washington’s adaptive management program. We’ll be highlighting a different aspect of the program in each newsletter, and begin with an article providing the context and history of the program.

Overview
Regulation of logging and silviculture practices in Washington began in 1974 with the passage of Forest Practices Act. The act sought to balance the protection of Washington’s natural resources and maintaining a viable forest industry. The Forest Practices Board (the Board) was established as the independent state agency responsible for adopting the rules necessary to fulfill the act.

Over time, the forest practices rules and associated guidance were more fully developed through a number of collaborative multi-stakeholder agreements. The first of these agreements, the Timber Fish and Wildlife (TFW) Agreement of 1987, was negotiated between Washington State, Washington treaty tribes, the timber industry, and environmental groups as an alternative to ongoing litigation between the timber industry and tribes. The TFW Agreement laid the foundation for the cooperative management of the state’s forestlands that continues to this day.

The accomplishments of the program and long-term commitment of the participants resulted in the 1999 Forests and Fish Report, the permanent forest practices rules adopted in 2001, and the subsequent approval of the Forest Practices habitat conservation plan (HCP). This HCP was the first in the nation to cover a state-wide regulatory program. It covers over nine million acres of state and private forestland and is a critical piece of the state’s salmon recovery strategy. Importantly, it provides Endangered Species Act and Clean Water Act assurances, which in turn provides regulatory stability for Washington’s forest landowners and timber industry.

Timber, Fish, and Wildlife Agreement
The political climate of the 1970s and 1980s was the drive behind the development of the TFW process. In addition to the passage of the Forest Practices Act, 1974 saw Judge George H. Boldt of the United States District Court reaffirm the right of most Washington tribes to act as “co-managers” with the state for salmon fisheries and reaffirmed their right to continue to harvest. Commonly referred to as the Boldt decision (U.S. vs. Washington, 384 f. Supp. 312), the court held that all tribes that had signed treaties in 1855 (the Treaty Tribes) with the federal government in what is now Washington State, were entitled to harvest 50 percent of off-reservation fisheries production. The second phase of the decision, “Phase II”, required the state to protect hatchery fish and aquatic habitats that support fisheries. Although issues such as rights to hatchery fish and habitat protection continued to be litigated for many years, the tribes and industry ultimately agreed that joint implementation of Phase II was in their best interests, and they agreed to forgo further litigation.

In 1986, the Board proposed new regulations for riparian zone protection and affects from past,
present and possible future action (cumulative affects), resulting in serious disagreements between and within the Board and stakeholders. Stakeholder groups requested that the Board delay the new rules until they could work out an agreement. The Board agreed and set a deadline of December 1986 for the agreement. Negotiations between the Treaty Tribes, the timber industry, environmental groups, and state governmental agencies began in July of 1986, and the agreement was finalized in 1987. The state Legislature accepted the recommendations and amended the Forest Practices Act to follow the recommendations made in the TFW Agreement.

Forests and Fish Report
In the mid-1990s three issues emerged that led to the creation of emergency rules, as well as permanent forest practices rule changes:

  • An increase in the number of streams not meeting the water quality standards of the Federal Clean Water Act. By 1998, the U.S. Environmental Protection Agency and Washington State Department of Ecology had placed more than 660 streams on a list of
    waterways that did not meet Clean Water Act standards.
  • The accuracy of water typing maps used to establish fish presence/absence for implementing appropriate forest practice rules. In the early 1990’s biologists with tribes and environmental groups reported sightings of fish further upstream than existing maps recognized.
  • The listing of Pacific Chinook salmon as endangered under the Endangered Species Act and the pending listing of coho, chum, pink, and sockeye salmon, and steelhead trout as either threatened or endangered in rivers and streams across the Northwest.

In response to water quality and aquatic endangered species issues, the Board adopted emergency water typing rules in 1996 and salmonid emergency rules in 1998. In 1997 Governor Gary Locke and 13 natural resource agency heads agreed to establish the Joint Natural Resources Cabinet. The Cabinet’s purpose was to provide the framework for coordinating policy on environmental and natural resource issues, with one of its first tasks being the creation of a statewide salmon recovery strategy.

The participants in the TFW Agreement were asked to develop recommendations for the forestry component of the strategy, with the first meeting of the group resulting in the establishment of the forests and fish process. Existing TFW participants decided to work collaboratively in developing the recommendations, to use their group as a forum, and to base the recommendations on best available science. Two new caucuses were invited to participate – a federal caucus comprised of the U.S. Fish and Wildlife Service, the U.S. National Marine Fisheries Service, and the U.S. Environmental Protection Agency, and a local government caucus.

The collaboration focused on four key goals for non-federal lands: providing compliance with the Endangered Species Act for aquatic and riparian-dependent species; restoring and maintaining riparian habitat to support a harvestable supply of fish; meeting the requirements of the Clean Water Act; and keeping Washington’s timber industry economically viable.

The resulting Forests and Fish Report reflected the commitment to salmon recovery, the restoration of related riparian ecosystems, and the need for tribal involvement in all phases of forest management and rulemaking. However, the authors’ commitments were subject to:

  • The state legislature’s adoption of a statutory package to implement the report prior to July 1, 1999;
  • The Board’s adoption of permanent rules implementing the recommendations in the report;
  • Adequate funding for implementation of the recommendations;
  • Receipt of federal assurances relating to the Endangered Species Act and the Clean Water Act; and
  • Continued support from the authors for the completion of the tasks and implementation of the provisions specified in the report. Report authors are as follows: U. S. Fish and Wildlife Service; the National Marine Fisheries Service; the U. S. Environmental Protection Agency; the Office of the Governor of the State of Washington; the Washington State Departments of Natural Resources, Fish and Wildlife, and Ecology; Indian tribes and tribal organizations; the Washington State Association of Counties; the Washington Forest Protection Association, and the Washington Farm Forestry Association.

Next newsletter: The Forest Practices Adaptive Management Program