BEFORE THE FOREST PRACTICES APPEALS BOARD
STATE OF WASHINGTON
This matter came on for hearing before the Forest Practices Appeals Board (Board) on January 7-11, 2002 in Lacey, Washington. The Appellants Washington Environmental Council and Washington Trout (WEC) challenge the channel migration zone (CMZ) designation approved in connection with Forest Practice Application (FPA) 2407607. The FPA authorized an even-aged harvest of approximately 70 acres on Weyerhaeuser Co. (Weyerhaeuser) property adjacent to the Greenwater River in Pierce County.
The Board at hearing was comprised of Tom P. May, chair, Robert E. Quoidbach and Joel Rupley. Administrative Appeals Judge, Phyllis K. Macleod, presided for the Board. Counsel Tobey Thaler and Peter Goldman of the Washington Forest Law Center represented the appellants in this case. Counsel Ann Forest Burns and Bruce Williams represented Weyerhaeuser, and Assistant Attorney General, Cheryl Nielson represented the Department of Natural Resources (DNR).
The Board conducted a site visit of the proposed harvest on November 13, 2001. The site visit was conducted prior to the hearing to avoid snow coverage that was anticipated during the scheduled January hearing dates. At the hearing witnesses were sworn and heard, exhibits were introduced, and arguments were presented to the Board. Based upon the evidence presented the Board makes the following:
FINDINGS OF FACT
I.
In December 2000, Weyerhaeuser submitted an application to DNR for an even-aged (clear-cut) harvest of approximately 70 acres on land adjacent to the Greenwater River in Pierce County. The harvest site is located a few miles east of the town of Greenwater approximately three miles upstream from the confluence of the Greenwater and White rivers. The Greenwater River is a habitat for several fish species included spring chinook, coho, steelhead, pink salmon, native char, resident coastal cutthroat trout and rainbow trout. The site was logged in the late 1950’s -1960 and was replanted at that time. The permit area includes a levee associated with a bridge across the Greenwater at the upstream end of the harvest unit.
II.
In preparing the forest practice application for submittal, Weyerhaeuser considered whether delineation of a channel migration zone would be required in connection with anticipated harvest activities on this site. Due to characteristics of the site and the nature of the stream at this location, Weyerhaeuser concluded that delineation of a CMZ would be needed.
III.
Initially Weyerhaeuser forest engineer Don Schuh consulted with DNR, through forester Jerry Johnson, to identify the CMZ for this site. Shortly before the FPA was approved on January 10, 2001 an interdisciplinary team (IDT) consisting of representatives from the Department of Ecology, MIFT, Weyerhaeuser and DNR jointly visited the site to assess whether the CMZ location was correctly identified.[1] The IDT concluded that the CMZ line should be moved landward in one area to reach a perceived point of geologic control. The CMZ was re-flagged at the IDT line and a Notice to Comply was issued by DNR to bring the permit into compliance with the modified CMZ determination. The line was moved back to an area referred to as a “higher terrace.” This CMZ line was depicted on a map Weyerhaeuser submitted to DNR dated January 17, 2001.
IV.
FPA 2407607 also includes a Riparian Management Zone (RMZ), which begins at the landward edge of the CMZ. The RMZ is comprised of three sub-zones described as the core, the inner, and the outer zones. The total width of the core and inner zones on this particular application is 105 feet. The core zone is 50 feet wide and the inner zone is 55 feet wide. Weyerhaeuser has agreed that no harvesting will be undertaken within 75 feet of the CMZ, so there will be no harvest within the core area and no harvest within the first 25 feet of the inner zone.
V.
Protection and recovery of aquatic habitat through conservation of CMZs is a concept developed during a long series of multi-interest negotiations which culminated in publication of the April 1999 Forests and Fish Report (FFR). The Legislature officially adopted the FFR in 1999 and directed the Forest Practices Board (FPB) to adopt emergency rules consistent with the FFR. RCW 76.09.055. The Emergency Rules were adopted in March 2000. The FPB adopted final rules in May 2001 that took effect July 1, 2001.
DNR has developed a manual providing technical assistance for implementing the forest practices regulations. Development of the “Forest Practices Board Manual”[2] (Manual) was contemplated by the FFR and authorized by WAC 222-12-090. The Manual gives applicants specific guidance on recognizing when a CMZ is present and on delineating the boundaries of a CMZ. The Manual is not an adopted administrative rule.
VI.
It is basically undisputed that this reach of the Greenwater River is properly analyzed under the Washington Forest Practices Manual as an avulsing stream. An avulsing stream is one that tends to change course or channel suddenly in contrast to meandering streams, which typically erode and change course at a predictable rate. The Greenwater has exhibited the characteristics of an avulsing stream over time. There was a relatively recent avulsion on this reach of the Greenwater, during which the main channel moved to a new location, as evidenced by the aerial photographs presented.
VII.
A substantial body of evidence and expert opinion addressing the historic channels of the Greenwater River was presented to the Board. Aerial photographs dating from the years 1942 to 2000 were reviewed by witnesses and presented to the Board. Additional scientific investigation was conducted of abandoned side channels, channel and valley bottom characteristics, topography, vegetation, and substrate material. The range of evidence varied from Dr. Abbe finding a very large number of side channels in 1942, to Jeffrey Clark finding very few active side channels in 1942. Weighing the evidence presented, the Board concludes that the relatively undisturbed forested state in 1942 did not contain as many active side channels as suggested by Dr. Abbe. The Greenwater in 1942, however, was a much more complex stream system than it is today after the effects of logging in the area. The Board further finds that the large arced landform on several of the aerial photographs referred to by Dr. Abbe as the Northwest channel is most likely an ancient landform or relic channel that does not provide guidance on the tendencies of the Greenwater to actively occupy this area in the next 100 years.
VIII.
The substrate in the FPA area and adjacent areas in the valley bottom was examined by scientists representing both parties. In Dr. Abbe’s opinion the existence of substrate material that was deposited by a channel is a basis for including the area in the CMZ. While noting deposition of alluvial material in the soil, the respondents’ experts discovered soil development in disputed areas that would have necessarily occurred over a long period of time. While the river may have deposited material at one time, it is less clear that the active channel would return to the area within the next 100 years. The weight of the evidence indicated that while the substrate has indicia of being deposited by a river, the soil development shows it has not been an active channel recently.
IX.
The CMZ delineated on this site follows along a bench or terrace that was most likely the bank of a formerly active channel. The bank is composed of material that can be eroded by the stream, since the stream cut that channel. The appellants have questioned whether this can serve as any meaningful geologic control on the active channel of the river. Testimony showed that this area would typically be reached only by extreme flood events and that the velocity of the water at the edge of the stream in a flood state would lack the significant force necessary to cut a new channel into or through the bench. In fact, during 1977 an extremely large flood, at or exceeding the 100 year event occurred on the site and the bench was not modified. The weight of the evidence supports the propriety of using the bench as a geologic control in designating this CMZ based on anticipated conditions within the next 100 years. Significant changes in vertical bed height during the next 100 years could impact the propriety of using the bench as a geologic control on this site.
X.
The logging on this site in late 1950’s -1960 had a marked impact on this stretch of the Greenwater. Aerial photographs depict significant sedimentation in the stream after the logging was completed. The harvest also removed the immediate source of much of the large woody debris in the reach. The loss of large woody debris resulting from logging and the increased velocity resulting from channel constriction at the bridge have caused incision in the river channel and may have isolated some formerly active side channels.
XI.
The evidence established that access to and potential accumulation of large woody debris in the coming years could tend to cause aggradation in the stream and an increase in the vertical height of the streambed. The amount of vertical bed increase is closely related to the likelihood of active channel movement beyond the currently delineated CMZ into other parts of the floodplain and terraces. With the addition of large woody debris, the natural processes in the river are expected to recreate a more complex system with increasingly favorable fish habitat. Neither DNR (pursuant to the Manual) nor Weyerhaeuser presented evidence that they evaluated the impact of vertical bed changes on the delineation of this CMZ. The manual does not contain specific language addressing vertical bed changes.
XII.
Any Conclusion of Law deemed to be a Finding of Fact is hereby adopted as such.
Based on the foregoing Findings of Fact the Board enters the following
CONCLUSIONS OF LAW
I.
The Board has jurisdiction over the parties and the subject matter of this case under RCW 76.09.220. The case is considered de novo (WAC 223-08-177) and the appellants have the burden of proof. Walker v. DNR, FPAB No. 99-44 (1999).
II.
This case involves a controversy over the proper delineation of a channel migration zone on the Greenwater River. Channel migration zones were first described in the Forests and Fish Report as:
[T]he area where the active channel of such stream is prone to move and where such movement would result in a potential near-term loss of riparian forest adjacent to the stream. . . . The Forest Practices Board Manual will provide further guidance for the delineation of channel migration zones on the ground.
Forests and Fish Report , p. 7.
Channel migration zones are now addressed in the Forest Practices Act as well. The Act defines an “unconfined avulsing channel migration zone” as follows:
The area within which the active channel of an unconfined avulsing stream is prone to move and where the movement would result in a potential near-term loss of riparian forest adjacent to the stream. Sizeable islands with productive timber may exist within the zone.
RCW 76.09.020(20)
The Weyerhaeuser application for this harvest was submitted under and is properly analyzed pursuant to the Forests and Fish Emergency rules. The definition of a CMZ in the emergency rules stated: “The area where the active channel of a stream is prone to move and this results in a near-term loss of riparian habitat adjacent to the stream.” WAC 222-16-010. The permanent Forests and Fish rules interpreted the meaning of “near term” to mean “the time scale required to grow a mature forest.” WAC 222-16-010.
III.
The Forests and Fish Report and the Forest Practice regulations refer to DNR preparing a manual including technical guidance on the recognition and delineation of CMZs. DNR prepared such a manual under the Emergency Forests and Fish rules, which has been provided as evidence in the case. The Manual defines a CMZ as “the lateral extent of likely movement along a stream reach with evidence of active stream channel movement over the past 100 years.” Manual at p. 12. The manual further defines two different types of channel movement, channel avulsion and progressive meandering. Manual at p. 15. Different methods are used to delineate a channel migration zone for each type of stream pattern.
IV.
The Board has found the relevant stretch of the Greenwater is properly categorized as an unconfined avulsing stream. The evidence demonstrates movement of the active channel of the stream within the last 100 years. As a result, delineation of a channel migration zone is proper in this case. Manual at p. 12.
V.
The harvest site is located within an area where the Forests and Fish Report presumes that a mature riparian forest would be present when trees reach the age of 140 years. Forests and Fish Report, p. 18. Since this site contains trees approximately 40 years old, the CMZ delineation should consider conditions prone to occur within the next 100 years.
VI.
While the statutes, regulations and Manual are designed to allow for reasonable application in the field, the Manual does acknowledge that in certain circumstances a channel expert will be needed to delineate a CMZ. Manual at p. 23, 24. The relatively unpredictable behavior of avulsion channels is specifically mentioned as a situation calling for expertise: “Since the movement from one channel to another cannot be predicted, a channel expert may be helpful for determining the CMZ boundary of avulsion channels, particularly if a complex network of side channels is present.” Manual at p. 30. In this case the conditions giving rise to the need for a channel expert were present and the application should have been evaluated fully by qualified scientific experts before the CMZ was incorporated into a harvest permit. Since the Board reviews this matter de novo the procedural error is not controlling. After the petitioners challenged the CMZ before the Board, the respondents obtained scientific expertise and meaningful expert testimony was presented to the Board.
VII.
The weight of the evidence at hearing failed to demonstrate that channels active within the last 100 years were not included in the CMZ. While some ancient channels may be present in the area, insufficient evidence exists to conclude those ancient channels will become active within the next 100 years. The appellants did not carry the burden of proving that the geologic controls associated with the delineated CMZ would be inadequate to contain the river channel within the next 100 years. There may be questions about the movement of this reach on a longer, geologic time scale, but the relevant inquiry in this case under the governing statutes and regulations extends only to the near-term or, in this case, 100 years.
VIII.
The evidence, however, did establish that the Manual and the scientists for DNR and Weyerhaeuser failed to take into account the effects to be expected from vertical bed movement on this site within the next 100 years. It was demonstrated that vertical bed movement could occur and that the amount of movement would be directly related to the propensity of the Greenwater to move into certain areas of the floodplain outside the currently delineated CMZ (as set at the geologic control) within the next 100 years. To the extent this potential impact on river behavior was not considered, the CMZ delineation was lacking and the matter should be remanded to DNR for further development and consideration of technical information on vertical bed movement, incision, and aggradation, likely to occur on this site under the woody debris conditions expected during the next 100 years.
IX.
Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such.
Based on the foregoing Findings of Fact and Conclusions of Law, the Board enters the following
ORDER
The CMZ delineation on this site is sustained except to the extent that potential vertical bed movement over time was not considered. The case is remanded to DNR to consider technical information on vertical bed movement including incision and aggradation to be expected under the woody debris conditions that will occur on this site during the next 100 years, and in light of that information, to evaluate whether active channels of the Greenwater are prone to move outside the delineated CMZ within the next 100 years.
Done this 11th day of April 2002.
FOREST PRACTICES APPEALS BOARD
Tom P. May, Chair
Robert E. Quoidbach
Joel Rupley
Phyllis K. Macleod
Administrative Appeals Judge, Presiding
[1] A representative of Washington Department of Fish and Wildlife visited the site separately and submitted a memorandum to DNR.
[2] The Manual applicable to this case is dated March 2000 and was prepared in connection with the Emergency Rules also adopted in March 2000. A revised manual has been published recently, interpreting the permanent rules.