Here is how one leading environmental law firm, the Marten Law Group, described the Forests and Fish Report.

A long-awaited programmatic habitat conservation plan, establishing new forestry rules aimed at protecting endangered and threatened salmon, and exempting landowners from certain provisions of the Endangered Species Act (ESA) for fifty years, was issued last month. While most habitat conservation plans cover specific parcels of land, the Washington State Forest Practices Habitat Conservation Plan (the Plan) broadly applies to approximately 9.3 million acres of non-federal, non-timber forestland. The Plan had been previously approved by NOAA Fisheries and the Fish & Wildlife Service after a period of public comment. It limits harvests near streams and on unstable slopes, and requires forestland owners to control runoff associated with logging. In exchange, property owners who comply with the new forestry rules will receive assurances from the state that they will be exempt from certain ESA provisions and will not be required to enact more restrictive limitations on property use until 2055. The Plan was widely praised by government officials, property owners, and representatives of the timber industry, but environmentalists say they are still concerned that the Plan provides insufficient protection for salmon and is too rigid to adapt to changing science.

The ESA broadly prohibits a range of activities that would result in the “take” of an endangered or threatened species, including killing, hunting, harassing, harming, or trapping. See 16 U.S.C. §§ 1533(19); 1538(a)(1)(B). Regulations promulgated by the Fish & Wildlife Service further prohibit significant habitat modification that actually kills or injures a threatened or endangered species by impairing essential behavior patters, including breeding, feeding, and sheltering. 50 C.F.R. § 17.3; 50 C.F.R. § 222.102.

Non-federal landowners may, however, apply for incidental take permits that exempt them from ESA’s prohibition on the “take” of a listed species. 16 U.S.C. § 1539(a). Incidental take permit applicants must prepare a HCP describing the impact that will likely result from the “take,” a strategy for minimizing and mitigating the “take,” alternatives to the “take,” and the reasons why the alternatives are not being implemented. Id. § 1539(a)(2). Additionally, any proposed “take” must be incidental to an otherwise lawful activity and must not significantly reduce the likelihood of the species’ survival and recovery. Id. Additionally, under a rule promulgated pursuant to ESA § 4(d), NOAA Fisheries may exempt from ESA’s “take” provisions qualifying forest management activities that comply with the Forest and Fish Rules. See 50 C.F.R. § 223.203

In response to the imminent listing of several species of Pacific salmon under ESA in 1996, a group of forest stakeholders, including the Washington Department of Natural Resources (DNR), Fish and Wildlife Service, National Marine Fisheries Service, Indian Tribes, members of the timber industry, private forestland owners, and environmental groups, agreed to address emerging riparian habitat issues. Following two years of negotiations, members of some environmental interests and some tribal interests withdrew from the negotiations. In 1999, the remaining stakeholders adopted the Forest and Fish Report (the Report). The Report outlined a plan for protecting water quality and aquatic and riparian-dependant species on non-Federal forestlands. To that end, the Report identified four goals: (1) provide compliance with the ESA for aquatic and riparian-dependant species on state and private forestlands; (2) restore and maintain riparian habitat to support a harvestable supply of fish; (3) meet the requirements of the Clean Water Act (CWA) for water quality; and (4) kept the Washington timber industry economically viable. Id. at 2.

In 1999, with strong bipartisan support, the Washington Legislature passed the Salmon Recovery Act (also known as the Forest and Fish Law) (ESHB 2091), which directed the Washington Forest Practices Board (the Board) to adopt rules consistent with the recommendations outlined in the Report. The Forest and Fish Law also directed the state to negotiate with federal officials to obtain assurances that compliance with rules adopted by the Board would satisfy federal requirements under the ESA and CWA by June 2005. RCW § 77.85.190.

In July 2001, the Board adopted rules consistent with the Report (commonly known as the Forest and Fish Rules), which protect aquatic and riparian habitat on forestlands regulated under the Forest Practices Act. The Forest and Fish Rules cover a wide variety of forest practices, and include rules addressing forest roads, protections for unstable slopes, and greater protections for riparian areas. See Title 222 WAC.

Consistent with the Forest and Fish Law, DNR prepared the Plan and an environmental impact statement (EIS) and submitted it to NOAA Fisheries and the Fish & Wildlife Service to: (1) obtain incidental take permits under ESA § 10 for threatened and endangered Pacific salmonids, and (2) request a limitation on the § 4(d) take prohibition for threatened species for forest practice activities conducted in compliance with the Forest and Fish Rules and administrative programs. NOAA Fisheries and the Fish & Wildlife Service acted as joint lead agencies for the Plan and the concomitant environmental impact statement. Most anadromous fish species fall under NOAA Fisheries’ jurisdiction, while non-anadromous fish, some anadromous fish, and amphibians fall within the Fish & Wildlife Services’ jurisdiction. FEIS at 1-4. In January 2006, the final EIS and the final draft of the Rule were published for public review and comment. 71 Fed. Reg. 4609 (Jan. 27, 2006).

Unlike most habitat conservation plans which apply to a specific parcel of land and a specific applicant, Washington’s Plan is programmatic in nature and provides ESA coverage for the majority of forest landowners through compliance with the State’s Forest Practices program. The Plan covers approximately 9.3 million acres of non-Federal, non-tribal forestland, which is defined by the Forest Practices Act as “all land which is capable of supporting a merchantable stand of timber and is not being actively used for a use that is incompatible with timber growing.” RCW § 76.09.101(9).

Species covered under the plan include six aggregations of chinook salmon, two aggregations of chum salmon, two aggregations of sockeye salmon, five aggregations of steelhead trout, and two aggregations of bull trout. Plan at 23-28. The Plan conserves habitat for those species and for 48 other fish and amphibian speices, including unlisted species that may become listed as threatened or endangered under the ESA at a future time. Plan at 23.

One of the Plan’s principal goals is to obtain assurances from the Fish & Wildlife Service and NOAA Fisheries Service that compliance with state forest practice rules does not form the basis of an alleged “take” of a covered species. Plan at 3. A secondary goal is to provide a regulatory climate “more likely to keep landowners from converting forestlands to other uses that would be less desirable for salmon recovery.” Plan at 3-4.

In order to achieve those goals, the Plan has two major components: an administrative framework and protection measures. The administrative framework provides for the creation of new forest practice rules and guidance, and for adaptive management research and monitoring to ensure the effectiveness of protection measures. The administrative framework also provides for watershed-scale cumulative impact evaluations.

The protection measures are broken into two conservation strategies: (1) the riparian conservation strategy, and (2) the upland conservation strategy. The riparian conservation strategy includes aquatic and riparian-related forest practice rules and guidance that protect the habitats of threatened and endangered Pacific Salmon. Plan at 181. These rules are aimed at improving and increasing aquatic habitat and riparian functioning. Plan at 4(b). The upland conservation strategy consists of protection measures that will be implemented in upslope areas outside of riparian zones and wetlands. Plan at 217. The goal of the upland conservation strategy is to “minimize or mitigate forest practices-related changes in erosion and hydrologic processes and the associated effects on resources.” Plan at 4(c):1. The upland strategy includes measures related to unstable slopes, road construction and maintenance, and fain-on-snow hydrology. Activities covered by the riparian and upland strategies include timber harvesting, road construction, road maintenance and abandonment, reforestation, and site preparation.

In exchange for complying with the riparian and upland conservation strategy requirements, forestland owners will receive protection from the ESA “take” prohibition for fifty years, so long as the “take” is incidental to an otherwise lawful activity that complies with the Plan. Furthermore, forestland owners will receive assurances that activities consistent with the Forest and Fish Rules will be consistent with applicable CWA water quality rules.

Passage of the Plan was widely praised by a variety of interests. Commissioner of Public Lands Doug Sutherland likewise praised the Plan, stating that it will “help preserve healthy forests and clean streams … and will provide jobs and secure sustainable and responsible management of our forests.” DNR News Release (June 5, 2006). Representatives of Washington’s timber industry were similarly pleased. Bill Wilkerson, director of the Washington Forest Protection Association, a timber-industry advocacy group, stated that “We’re proud to have the guts to stay the course.” Timber-Salmon Plan Gets Federal Go-Ahead, Seattle Times (June 6, 2006). However, environmentalists who backed out of the negotiations which led to the adoption of the Forest Report in 1999 expressed concern. Representatives of the Fish Conservation Caucus expressed concern that the Plan, which will be in place for fifty years, may not be modified in light of new biology and new science. Id. Glen Spain of the Pacific Coast Federation of Fishermen stated that “[o]ur concern is that it is nowhere near protective enough … will this plan adequately protect the state’s fish runs? That’s an open question.” Id.

For more information, please contact Dustin Till.