Authority Of Forest Practices Board To Adopt A Moratorium On Forest Practices Applications Due To Potential Slope Instability

FOREST PRACTICES ACT / BOARD—DEPARTMENT OF NATURAL RESOURCES—DEPARTMENT OF ECOLOGY—ADMINISTRATIVE PROCEDURE ACT—RULEMAKING—Authority Of Forest Practices Board To Adopt A Moratorium On Forest Practices Applications Due To Potential Slope Instability

1.         The Forest Practices Board lacks authority to adopt a moratorium on the acceptance or approval of forest practices applications.
2.         The Forest Practices Board could adopt an emergency rule concerning unstable slopes, provided that the emergency rule complies with the Administrative Procedure Act and the Forest Practices Act.

 

April 17, 2015

The Honorable Peter Goldmark Commissioner of Public Lands 1111 Washington Street SE Olympia, WA   98504-7001

Cite As AGO 2015 No. 1

Dear Commissioner Goldmark:

            By letter previously acknowledged, you requested our opinion on the following questions:

1.         Does the Forest Practices Board have authority to adopt a moratorium on the acceptance or approval of forest practices applications that pose a threat to public safety due to potential slope instability?

2.         If the Forest Practices Board cannot adopt a moratorium, can it accomplish a similar result by adopting an emergency rule, and if so, what procedural steps must the Board follow to adopt an emergency rule concerning unstable slopes?

BRIEF ANSWERS

            1.         No. Nothing in the Forest Practices Act or elsewhere expressly authorizes the Forest Practices Board to adopt a moratorium on the acceptance or approval of forest practices applications. Moreover, we find it unlikely that such a power should be implied because it would be contrary to statutory directives regarding processing and approval or disapproval of such applications. This does not mean, however, that the Board lacks authority under its general

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rulemaking power and the Administrative Procedure Act to adopt emergency rules regarding unstable slopes, as explained in response to the next question.

            2.         The Board could use its rulemaking authority to adopt emergency rules concerning unstable slopes. Such rulemaking power, however, is constrained by the Administrative Procedure Act, which limits emergency rules to those that are immediately necessary to preserve the public health, safety, and welfare. Moreover, Board rules are also governed by provisions of the Forest Practices Act. Assuming the Board complies with these laws, it could issue emergency rules that place procedural or substantive limits on forest practices.

BACKGROUND

            The Forest Practices Act (Act) declares forest land resources to be “among the most valuable of all resources” in the state. RCW 76.09.010(1). To protect these natural resources and the state’s forest products industry, the legislature enacted a comprehensive system of laws governing forest practices. RCW 76.09.010(2). Codified at RCW 76.09, the Act serves to “manage commercial harvest of public and private commercial forest lands consistent with sound policies of natural resource protection.” Kettle Range Conserv. Group v. Dep’t of Natural Res., 120 Wn. App. 434, 449, 85 P.3d 894 (2003) (internal quotation marks omitted). To fulfill these purposes, the legislature distributed authority and duties under the Act among several government agencies and stakeholders. The Forest Practices Board, which consists of 13 members representing government entities, the timber industry, and the public, serves as the administrative legislative body responsible for promulgating forest practices rules. RCW 76.09.030, .040(2). [1] Specifically, the legislature authorized the Board to adopt rules that:

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            (i) Establish minimum standards for forest practices;

            (ii) Provide procedures for the voluntary development of resource management plans which may be adopted as an alternative to the minimum standards in (a)(i) of this subsection if the plan is consistent with the purposes and policies stated in RCW 76.09.010 and the plan meets or exceeds the objectives of the minimum standards;

            (iii) Set forth necessary administrative provisions;

            (iv) Establish procedures for the collection and administration of forest practice fees as set forth by this chapter; and

            (v) Allow for the development of watershed analyses.

RCW 76.09.040(1)(a).

            The Act also directs the Board to establish and maintain a Forest Practices Board manual that provides technical guidance for the standards incorporated into the forest practices rules. RCW 76.09.040(3)(c); see also WAC 222-12-090. Other provisions of the Act encourage “forest landowners to undertake corrective and remedial action to reduce the impact of mass earth movements and fluvial processes,” and require that the landowners assist in paying for the “costs of review and permitting necessary” for environmental protection. RCW 76.09.010(3), (4).

            Finally, the Act directs the Board to establish by rule which forest practices are to be included within legislatively designated classes of forest activities. RCW 76.09.050(1). These classes range from Class I practices, which have no direct potential for damaging a public resource, to Class IV special practices, which have the potential for a substantial impact on the environment. See RCW 76.09.050; WAC 222-16-050. Relevant to this opinion, per the Board’s existing rules, certain forest practices on potentially unstable slopes or landforms that have the potential to deliver sediment or debris to a public resource or that have the potential to threaten public safety qualify as Class IV special forest practices. WAC 222-16-050(1). [2]

            Before explaining the four classes of forest practices, we must first explain the separate role of the Department of Natural Resources. The Department administers and enforces the Act and regulations adopted under it. RCW 76.09.040(1)(c).[3] In particular, the Department receives, evaluates, and approves or disapproves applications from persons seeking to conduct forest

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practices. RCW 76.09.050(2), (5), .060; WAC 222-20. The Department also determines
which classification applies to each forest practices application proposal for purposes of
triggering the procedural or substantive requirements that govern that class of forest practice. WAC 222-16-050.

            Depending on which class the forest activity falls under, the Act sets specific procedures and requirements for the applications. See generally RCW 76.09.050. For instance, Class I activities may be conducted without submitting an application or notification to the Department. RCW 76.09.050(1) (Class I). In contrast, Class IV activities require an evaluation by the Department as to whether an environmental impact statement under the State Environmental Policy Act (SEPA) is required and a Department-approved application prior to commencing such activity. RCW 76.09.050(1) (Class IV). By statute, the Department must approve or disapprove Class IV applications within 30 calendar days of receipt unless a SEPA statement is required. RCW 76.09.050(1) (Class IV). If a SEPA statement is required, the Department must approve or disapprove the application within 60 calendar days from receipt. RCW 76.09.050(1) (Class IV).[4]

            The Department also investigates violations or potential violations of the Act. RCW 76.09.080, .090; WAC 222-46-030. The Department’s enforcement authority includes issuing a stop work order to immediately stop all work connected with a violation or when “immediate action is necessary to prevent continuation of or to avoid material damage to a public resource.” RCW 76.09.080(1)(c); WAC 222-46-040(1)(c). For any of these actions, including disapproval of a forest practices application, the Pollution Control Hearings Board serves as the adjudicative body responsible for hearing appeals of the Department’s decisions. RCW 76.09.050(9), .205.

            With this general background in mind, we now turn to your specific questions regarding the Board’s authority to impose a moratorium on the acceptance or approval of forest practices applications that pose a threat to public safety due to potential slope instability.

ANALYSIS

1.         Does the Forest Practices Board have authority to adopt a moratorium on the acceptance or approval of forest practices applications that pose a threat to public safety due to potential slope instability?

            As an initial matter, your question requires us to define what we are addressing when considering moratoriums. The Act contains no definition of moratorium, so we use the term’s ordinary meaning as explained in the dictionary and as applied in general practice. See, e.g.,

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AllianceOne Receivables Mgmt., Inc. v. Lewis, 180 Wn.2d 389, 395, 325 P.3d 904 (2014). “Moratorium” is defined as “1 a : a legally authorized period of delay in the performance of a legal obligation or the payment of a debt . . . b : waiting period set by some authority : a delay officially required or granted . . . 2 : a suspension of activity : a temporary ban on the use or production of something[.]” Webster’s Third New International Dictionary 1469 (2002). In practice, moratoriums are used by government entities to temporarily suspend certain activities, such as land use practices, while additional action is undertaken or considered. For instance, they may be used by local governments to delay development while devising growth management or zoning plans. See, e.g., RCW 35A.63.220 (authorizing moratoriums by cities for zoning); RCW 90.58.590 (authorizing local governments to adopt moratoriums as necessary to implement the Shoreline Management Act of 1971). They can also be used to delay the filing of permit applications. See Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996) (analyzing RCW 35A.63.220). In light of these definitions and practices, we understand your question regarding moratoriums to concern whether the Board can impose a temporary period during which it would not accept or approve certain forest practices applications based on a public health and safety concern over unstable slopes.

            As a state agency, the Board has only those powers expressly granted to it and those powers necessarily implied from its statutory delegation of authority. See Brown v. Vail, 169 Wn.2d 318, 237 P.3d 263 (2010). “[I]mplied authority is found where an agency is charged with a specific duty, but the means of accomplishing that duty are not set forth by the Legislature.” Id. at 330 (alteration in original) (quoting Tuerk v. Dep’t of Licensing, 123 Wn.2d 120, 124-25, 864 P.2d 1382 (1994)). Here, nothing in the Act provides the Board with any express authority to adopt a general moratorium.[5]

            The Act also fails to support finding implied authority to adopt a moratorium on acceptance or approval. The Act expressly charges the Board with establishing forest practices standards and classes, as well as developing necessary administrative provisions to implement the policies and purposes of the Act. RCW 76.09.040(1)(a)(i), (iii), .050(1). The Act then directs the Department to take specific action depending on the forest practice classification. This direction includes specifying when forest practices applications must be submitted and when the Department must act on the applications, including setting forth when the applications must be approved. See RCW 76.09.050, .060. If the Department fails to either approve or disapprove an application within the applicable time limits, the Act specifies the application is deemed approved. RCW 76.09.050(5). A Board-imposed moratorium on the Department’s acceptance or

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approval of these applications would appear to conflict with the Act’s directives regarding these procedures. And, any action that contradicts the Act’s directives would fall outside the Board’s authority, as agencies cannot amend or change legislative enactments. See, e.g., Washington Pub. Ports Ass’n v. Dep’t of Revenue, 148 Wn.2d 637, 646, 62 P.3d 462 (2003).

For these reasons, we conclude that no statutory authority exists for the Board to enact a moratorium on the acceptance or approval of forest practices applications. This is not meant to suggest that the Board is prohibited from adopting rules through its general rulemaking authority, as discussed in more detail in the next section.

2.         If the Forest Practices Board cannot adopt a moratorium, can it accomplish a similar result by adopting an emergency rule, and if so, what procedural steps must the Board follow to adopt an emergency rule concerning unstable slopes?

            The Board could use its rulemaking authority under the APA and the Act to adopt an emergency rule based on a threat to public safety. Such a rule could redefine acceptable forest practices so that the Department must disapprove forest practices applications due to potential slope instability for the time period that the rule was in effect. To do so, the Board would have to adhere to the requirements in both the APA and the Act for adopting any rules, including those deemed “emergency.” RCW 76.09.040(2)(a), .370(2).

a.         The APA’s Requirements

            The APA permits an agency like the Board to adopt emergency rules or amendments under certain limited circumstances. Specifically, the Board must for good cause find that immediate adoption or amendment of a rule related to unstable slopes “is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest[.]” RCW 34.05.350(1)(a). Such an emergency rule or amendment could take effect upon filing with the code reviser, but may not remain in effect for longer than 120 days after filing. RCW 34.05.350(2). Further, the Board could not subsequently readopt identical or substantially similar emergency rules unless conditions have changed or the Board has filed a notice of intent to adopt the rule as a permanent rule. RCW 34.05.350(2). In the latter case, the Board must then continue to follow all the normal procedural requirements for rulemaking, including selecting draft language, preparing applicable cost-benefit and small business impact statements, and conducting a SEPA analysis as necessary. See, e.g., RCW 34.05.320, .328; see also RCW 43.21C.

b.         The Act’s Requirements

            As described above, the Board’s rulemaking authority includes establishing minimum standards for forest practices and designating which forest practices applications fall under the classes of forest practices set forth in the Act. RCW 76.09.040, .050. The Board, therefore, could use its rulemaking powers to change the scope of acceptable forest practices related to unstable

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slopes. Such a rule might limit the time period for operations, establish prerequisites, or prohibit specified practices. Further, such a rule might meet the requirement for an emergency rule if the rule had an expiration date and was being used to limit an objectively defined type of forest practice while the Board considers permanent rules.

            The Board might also adopt rules that require additional procedures related to specified practices, such as procedures that facilitate additional environmental or other review. For example, the Board could use its rulemaking powers to redefine when applications fall into the most restrictive class of forest practices, thus subjecting them to SEPA review and possible conditions or denial by the Department. See, e.g., WAC 222-10-010(4) (“An application . . . will be disapproved when the proposal would result in significant adverse impacts identified in a final or supplemental environmental impact statement prepared under SEPA, and reasonable mitigation measures are insufficient to mitigate the identified impacts and denial is consistent with all provisions of [the Act and SEPA].”).

            The Board should take note that some rules may require additional procedures under the Act. For example, while the Board has sole authority to adopt such forest practices rules and procedures, any rule “pertaining to water quality protection” may be adopted only after reaching agreement with the Department of Ecology. RCW 76.09.040(1)(b); WAC 222-12-010. Moreover, rules “covering aquatic resources"[6] may be adopted or amended only if consistent with recommendations resulting from the adaptive management program established by the Board.[7] RCW 76.09.370(6), (7); WAC 222-08-160(2). Thus, if the emergency rules the Board adopted fell into one of these categories, these additional procedures would apply, as the Act contains no exemptions from these requirements for any type of rule, including emergency rules.[8] Because we are not evaluating a specific potential rule, it is difficult to say whether these provisions would come into play.

            In sum, we conclude that the Board has authority to adopt an emergency rule that could, in effect, halt the approval of forest practices applications that pose a threat to public safety due to potential slope instability. Such rulemaking, however, must be conducted in compliance with

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the substantive and procedural requirements of the APA and the Act. Further, while this opinion addresses the Board’s rulemaking authority, we offer no opinion on the substance of such a rule, or whether the rule could be successfully challenged under the APA or otherwise.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

   Attorney General

CALLIE A. CASTILLO

   Deputy Solicitor General

wros

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[1] “Forest practice[s]” are defined in RCW 76.09.020(17) as: