Sunday, August 21, 2011

The Six-Year Moratorium Again: What Is "The Law"?

Now and again, this blog has been known to tweak the County about its reluctance to follow state law. For example, here (Fire District 21 and impact fees) and here (growth management issues).

Fortunately for those who like variety, today's blog focuses on a new twist to that old plot line. Now the County is declaring that it has to follow state law, to the point where it has to forego enforcing the County Code.

The issue is the six-year moratorium that the Whatcom County Code appears to make mandatory when timber harvesting takes place without a forest practices application or notice. The location is, of course, Cherry Point. (For more information, see this blog, and this one, and this one. And this one and this one.) (That's in reverse chronological order.)

According to a letter dated August 19 from the County Prosecutor’s Office, “local ordinances cannot regulate where state ordinances have prohibited regulation, and such is the case here. The above state statutes are quite clear that the County may not regulate unless a full conversion has occurred.”

Based on this letter, the County's Planning and Development Services Department has stated that it will not impose the moratorium required by the County Code.

So I should be happy about the County's sudden conversion to the necessity of following state law. Right?

Well --

It's a pretty big deal when the executive branch decides not to enforce a law on the books. I'm sure that we all want to make sure that the relevant County Code provision really is void, or invalid, or preempted, before the Planning and Development Services Department nullifies a law passed by our legislative branch.

I’m probably dense, but the problem that I’m having is that I can’t find a state law or regulation that prohibits the County’s regulation.

And so, I’ve written the County to ask for more information. For the truly dedicated, here’s the letter.

And what follows is a condensed version:

State law requires the County to impose a six-year moratorium, and to deny permits and applications, when the state Department of Natural Resources issues a “notice of conversion.” DNR hasn’t issued such a notice (more on conversion in a moment).

But state law doesn’t say that that County can’t impose a moratorium on new applications when unauthorized timber harvest has taken place. In fact, state law authorizes the County to adopt “additional or more stringent regulations,” as long as they are not inconsistent “with the forest practices regulations enacted under this chapter.”

It's entirely possible that I missed something, but I didn’t find any forest practice regulations that are inconsistent with the County Code moratorium provisions. What I did find was a requirement stating that, “if the forest practice takes place without a required application or notification, then the provisions of RCW 76.09.060 (3)(b)(i) regarding the six-year moratorium apply.” WAC 222-20-050(3).

That actually sounds pretty consistent with the County’s code. The forest practices on Cherry Point took place without a required application or notification, so the County imposes a moratorium. And my question is: where does state law "prohibit" the County from implementing the County Code?

One reason for the confusion might be the difference between the actual state law governing the County's authority to adopt “additional or more stringent regulations” (RCW 27.09.240(6)), and the version that the Prosecuting Attorney’s Office apparently is contemplating. Here’s how the Prosecuting Attorney’s memo described the law:

RCW 76.09.240(6)(a) indicates that “no county…shall adopt or enforce any law…pertaining to forest practice, except…That exercise of such authority may regulate forest practices only…Where…the lands have been or will be converted…”

The memo then states that “reading this section requires some navigation. . .” Actually, creating that text out of the actual state law language required some navigation. Here’s what the law actually says, with the bits and pieces included in the Prosecuting Attorney’s quote in bold and the parts that I think are important underlined:

For those forest practices over which the board and the department maintain regulatory authority no county, city, municipality, or other local or regional governmental entity shall adopt or enforce any law, ordinance, or regulation pertaining to forest practices, except that to the extent otherwise permitted by law, such entities may exercise any:

(a) Land use planning or zoning authority: PROVIDED, That exercise of such authority may regulate forest practices only where the application submitted under RCW 76.09.060 as now or hereafter amended indicates that the lands are being converted* to a use other than commercial forest product production: PROVIDED, That no permit system solely for forest practices shall be allowed; that any additional or more stringent regulations shall not be inconsistent with the forest practices regulations enacted under this chapter; and such local regulations shall not unreasonably prevent timber harvesting;

[*The Prosecuting Attorney’s memo says “lands have been or will be converted.” The language in this quote is correct – the provision was amended this year.]

As you can see, the memo left out parts of the statute that look like they might uphold the County Code. That’s why I’m hoping for clarification.

As for conversion – the Forest Practice Rules define “conversion activities” (in WAC 222-16-010):

"Conversion activities" means activities associated with conversions of forest land to land uses other than commercial timber operation. These activities may be occurring during or after timber harvest on forest land. They may include but are not limited to the following: . . .

Any of, or any combination of, the following activities in preparation for nonforestry use of the land: Grading, filling, or stump removal.

Taking the project proponent’s claim at face value, the construction of around four miles of roads and the clearing of about nine acres of forest was needed for a geotechnical analysis. The geotechnical analysis was “in preparation for” a nonforestry use of the land: the construction of a coal terminal.

How is this not “conversion”?

I hope that the Prosecuting Attorney’s Office will clarify.

Update: Here's a link to the Earthjustice letter discussed in my comment below. The need for a class IV forest permit is described starting on page 5.


  1. Something is clearly amiss, again, in Whatcom County. PDS has consistently enacted moratoriums on land when this exact type of harvest took place without a Class IV forest practice permits. The moratorium was recorded on the land until the cost of recording became a burden to PDS' budget. Go to the Whatcom County Auditor website under Recording, and search for "Notice of Moratorium."

    Finally, if Whatcom County could impose a moratorium on wind energy, could it not impose a moratorium on this coal application consistent with local code? Surely, I gest.

  2. Class IV forest practice permits, you say? DNR's Notice of Violation only called for a Class III permit. Earthjustice's letter to the County (that preceded the County's letter discussed above) explains in detail why that was wrong and why a Class IV permit is required.

    I'll post the link at the end of the blog. The discussion of the Class IV permit requirement starts at page 5.

    Since it took Carl's dogs to sniff out the nine acres of forest conversion, maybe they think that we aren't paying attention ---? But really, with a huge, visible project like this, you'd think that the agencies in charge of protecting the public interest would be working diligently on our behalf. As the Earthjustice letter states:

    "Should DNR elect not to require the applicant to apply for a Class IV-General forest practices permit to cover the completed activity, it would have the effect of depriving the public of due process that would have allowed appeals to the Forest Practices Appeals Board of any conditions imposed with the forest practices permit."

  3. Since the County has determined that its code violates state law, shouldn't they be taking immediate action to amend and revoke the provisions in noncompliance? Funny that I have not seen that mentioned.

    Wendy Harris

  4. Once again, Whatcom county's attorneys are on their knees, simply awaiting any appropriate posterior to award the service of their lips !

  5. Wendy -- David raises a good point about this. You're suggesting that the County should have to prove (openly, through a public process) that its land use authority doesn't allow it to impose a moratorium based on illegal forest practices. If it did so, somebody might ask how it has the authority to impose a moratorium on (legal) wind energy. That could be awkward for the County, I should think.

    g.h. -- that image was presented right as I contemplated a late dinner. . .

  6. Sorry, Jean. Hope you weren't planning on rump roast!

  7. The county's selectivity on which aspects of state law it finds optional and/or inviolate continues to stun me.

    As outlined in the EarthJustice letter, the trigger actually establishes the public process (hearing examiner) whereby the intent of the applicant may be determined. Are county prosecutors saying that, without such a process and hearing, they have divined the intent of the applicant?

    Astonishing that a man of McEachran's years can do an exotic limbo dance of such ethical and legal flexibility.