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.