H. B. 4634
(By Delegates Mahan, Staton, Hines,
Campbell and Compton)
[Introduced February 23, 2000; referred to the
Committee on the Judiciary then Finance.]
A BILL to repeal article one-b, chapter nineteen of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; and to amend chapter twenty-two of said code by
adding thereto a new article, designated article eleven-a,
relating to sediment control during commercial timber
harvesting operations; short title and legislative purpose
of article; definitions of certain terms; development by the
division of natural resources of sediment control program
for commercial timber harvesting operations including
adoption of best management practices; requiring submission
to the division of forestry of registration forms prior to
conducting commercial timber harvesting activities;
procedure for approval of registration forms by the division
of forestry; requiring training and certification of timber
operators; inspections; review; and enforcement of the
article.
Be it enacted by the Legislature of West Virginia:
That article one-b, chapter nineteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; and that chapter twenty-two of said code be amended by
adding thereto a new article, designated article eleven-a, to
read as follows:
ARTICLE 11A. SEDIMENT CONTROL DURING COMMERCIAL TIMBER HARVESTING
§22-11A-1. Short title.
This article shall be known and cited as the "Logging
Sediment Control Act."
§22-11A-2. Legislative findings, intent and purpose of article.
The Legislature hereby finds that the commercial harvesting
of timber, in particular the construction of haul and skid roads
and landings, is a significant contributor to sedimentation and
further that sediment is a serious source of water pollution.
It is the policy of this state to strengthen and extend the
present sediment control activities of this state and to regulate
the commercial harvesting of timber by implementing, through the
division of natural resources, a sediment control program to
reduce the resulting sedimentation impacts from timbering to the
waters of the state.
§22-11A-3. Definitions.
(a) "Best Management Practices" means sediment control
measures, structural or nonstructural, developed cooperatively by the division of natural resources and the division of forestry as
a part of the implementation of section two hundred and eight of
the federal clean water act and used singly or in combination to
reduce soil runoff from land disturbances associated with haul
and skid road construction and landings related to commercial
timbering operations.
(b) "Chief" means the chief of the office of water resources
of the division of environmental protection.
(c) "Commercial timbering operation" means severing of
standing trees as a raw material for further manufacturing
processes. Commercial timbering operation does not include the
following:
(1) Cutting of trees for clearance or maintenance of
existing rights of way for a public utility or a public highway;
(2) Maintenance cutting in pasture land;
(3) Cutting of trees for noncommercial use by the landowner
or tenant, Provided that trees cut by the landowner or tenant
shall be considered to be a commercial timbering operation if the
trees are used for sale or barter;
(4) The harvesting of christmas trees.
(d) "Director" means the director of the division of
environmental protection of the department of commerce, labor and
environmental resources, or his or her authorized designee.
(e) "District office" means the various stations of the division of forestry located throughout this state designated as
district offices by the division of forestry.
(f) "Division" means the division of environmental
protection of the department of commerce, labor and environmental
resources.
(g) "Equipment trail" means a road constructed or improved
by the logger for the purpose of transporting equipment within
commercial timbering operations.
(h) "Division of forestry" means the division of forestry of
the department of commerce, labor and environmental resources.
(i) "Haul road" means a road constructed or improved by the
logger for the purpose of transporting logs harvested during a
commercial timbering operation from a landing site or sites to
its junction with a county, state or other public road.
(j) "Landing" means a collection point on the site of a
commercial timbering operation where logs are collected prior to
transport for further processing.
(k) "Logger" means any person directly involved in the
actual harvest of trees in a commercial timbering operation
whether as a manager, supervisor or laborer.
(l) "Log road workshop" means an organized session conducted
by the division of forestry to instruct loggers in the proper
techniques of planning, constructing and reclaiming road and
landing systems for commercial timbering operations.
(m) "Registration" means the form, or process, as indicated
by the context in which the term is used, by which a person
provides certain information on the location of a commercial
timbering operation and the best management practices or other
sediment control practices to be used during that operation.
(n) "Skid road" means a road constructed, used or improved
by the logger to transport logs from the harvesting site to a
landing.
(o) "Sediment" means solid particulate matter, usually soil,
deposited by wind, rainfall or snowmelt into the waters.
(p) "Service forester" means an employee of the division of
forestry.
(q) "Waters" means any and all waters on or beneath the
surface of the ground, whether percolating, standing, diffused or
flowing, wholly or partially within this state, or bordering this
state and within its jurisdiction, and shall include, without
limiting the generality of the foregoing, natural or artificial
lakes, rivers, perennial or intermittent streams, creeks,
branches, brooks, ponds (except farm ponds, industrial settling
basins and ponds and water treatment facilities), impounding
reservoirs, springs, wells, watercourses and wetlands;
§22-11A-4. Development of sediment control program for
commercial timbering operations.
(a) The director shall implement a sediment control program for commercial timbering operations based upon the best available
technology for the control of sediment from those operations,
including but not limited to certain existing sediment control
provisions which are currently in place under the joint efforts
of the division and the division of forestry, and made available
to persons engaged in commercial timbering operations in the form
of a "Best Management Practices Manual." The sediment control
program shall be implemented through legislative rules
promulgated by the director in accordance with the provisions of
chapter twenty-nine-a of this code. The Legislature expressly
finds that these legislative rules are the proper subject of
emergency legislative rules which may be promulgated in
accordance with the provisions of section fifteen, article three,
section twenty-nine-a of this code.
(b) The program shall provide for the adoption of, at a
minimum, best management practices to be used by the logger to
reduce the impact of sediment to the state's waters during and
after commercial timbering operations. The best management
practices shall be a guide for use by the logger in determining
practices appropriate and adequate for reducing sedimentation
during a commercial timbering operation. The best management
practices shall be reviewed and revised, as necessary, by the
division and the forestry division, at least every five years to
ensure that those practices reflect and incorporate current technologies.
(c) As a part of, or in addition to, any requirements of
best management practices, the program shall include, at a
minimum, the following:
(1) A prohibition upon the location of any part of any
commercial timbering operation in any area where the slope of the
land is greater than fifty per cent.
(2) A prohibition upon the use of any vehicle other than
those with rubber tires in conducting commercial timbering
operations in any area where the slope of the land is greater
than thirty seven per cent.
(3) A prohibition upon the construction of commercial
timbering operations during the months when the ground in the
location of the operation is subject to frequent freezing and
thawing.
(d) The program shall provide for technical assistance to
the logger through the forestry division's service foresters in
determining appropriate and adequate best management practices
for the commercial timbering operation. This assistance shall be
provided individually or through the establishment of regular
workshops which shall instruct the logger in the proper use,
including installation, repair and maintenance, of the best
management practices.
§22-11A-5. Registration and licensing.
(a) No logger or other person may engage in a commercial
timbering operation after the first day of July, one thousand
nine hundred ninety two unless a registration form has been
submitted to and approved by the division of forestry. The
person submitting the registration form for approval shall be
known as the "registrant".
(b) The registration form submitted to the division of
forestry shall include:
(1) Name, address and telephone number of the registrant and
the on-site supervisor;
(2) Location of the commercial timbering operation by
county, topographic map, and other pertinent information as may
be required;
(3) Name and address of landowner;
(4) Name and address of the owners of each parcel of land
which adjoins the site of the timbering operation. For purposes
of this subsection, the word "adjoins" means situated in such a
way that any part of the parcel lies within one hundred feet of
any portion of the proposed commercial timbering operation;
(5) Sketch map of boundary of commercial timbering
operation, including delineation of main haul roads, landings and
stream crossings;
(6) Description of sediment control practices to be used by
the logger during the timbering operation;
(7) Estimated starting and completion dates;
(8) Signature of responsible party; and
(9) Certification number of the logger: Provided, That no
certification number may be required until two years after the
original effective date of this article as it was previously
contained in chapter nineteen of this code.
(c) After the first day of July, one thousand nine hundred
ninety-two, no person may conduct, directly or indirectly
timbering operations, buy standing timber or buy logs for resale
until that person has obtained a license pursuant to this article
from the division of forestry and met all other requirements
contained in this article.
(d) An applicant for a license shall submit an application
in a form acceptable to the director of forestry. A fee of fifty
dollars shall be submitted with the application and with each
renewal of the license. The application shall, at a minimum,
contain the following information:
(1) The name, address and telephone number of the applicant
and, if the applicant is a business entity other than a sole
proprietor, the names and addresses of the principals, officers
and resident agent;
(2) The applicant's West Virginia business registration
number or a copy of the current West Virginia business
registration certificate. The division of forestry shall submit this information and a list of all applicants to the tax
commissioner each quarter of the calendar year to ensure
compliance with payment of severance, income withholding and all
other applicable state taxes;
(3) Signature of responsible party; and
(4) Any other information required by the director of
forestry.
(e) The division of forestry shall submit a copy of the
license form to the chief within ten days of issuance of the
license.
(f) The license shall be valid for a period of one year from
its issuance. Upon application for renewal of that license, the
division of forestry shall renew the license unless it determines
from its records or other information available to it that the
applicant for renewal of the license or persons controlled by the
applicant for renewal have been in violation of the requirements
of this article on three or more separate occasions during the
year prior to the application for renewal. If the division of
forestry determines that the applicant or persons controlled by
the applicant have been in violation of the requirements of this
article on three or more separate occasions during the year prior
to the application for renewal then the division of forestry may
refuse to renew the applicant's license or may condition renewal
of the license upon successful completion of a log road workshop and such additional training or actions as the division of
forestry may require.
§22-11A-6. Registration form approval required.
(a) At the time of the submission to the division of
forestry of the registration form, the registrant shall cause to
be published in a newspaper of general circulation in the county
where the timber harvesting operation will be located a notice
indicating that it has submitted the registration form, the name
of the owner of the land where the commercial timbering operation
will be located, the names of the owners of the land which
adjoins the site of the timber harvesting operation, the
approximate beginning and ending dates of the timber harvesting
operation and the address of the office of the division of
forestry where the registration may be examined. For purposes of
this subsection, the word "adjoins" means situated in such a way
that any part of the parcel lies within one hundred feet of any
portion of the proposed timber harvesting operation.
(b) The registration form shall be reviewed by the division
of forestry which shall determine if the registration form is
acceptable and shall:
(1) Approve the registration; or
(2) Disapprove the registration; or
(3) Conditionally approve the registration with the
conditions becoming part of the approved registration.
(c) The division of forestry may not approve any
registration form unless it complies with each of the following:
(1) It contains verification that the publication of the
newspaper advertisement required by this article has been made;
and
(2) It contains verification that notice of the filing of
the registration has been sent to adjoining landowners by
certified mail, return receipt requested; and
(3) The registration form contains all information required
by this article; and
(4) The haul roads, landings and stream crossings shown in
the registration form are so located as to eliminate to the
greatest extent possible, the addition of sediment to the waters
of West Virginia; and
(5) The sediment control practices to be used by the logger
during the timber harvesting operation have been designed so as
to eliminate, to the extent possible, the addition of sediment to
the waters of West Virginia; and
(6) All of the requirements of this article will be complied
with.
(d) The division of forestry may not approve the
registration until at least thirty days have passed since the
publication of the advertisement of the commercial timbering
operation was published as required by this article. The registrant shall be notified of the results of the review within
sixty days after the later of the date the registration form is
received by the division of forestry or the date of the
publication of the advertisement required by this article.
(e) Every registration form submitted shall contain a
statement acknowledging the chief's right to inspect the
commercial timbering operation.
(f) Subsequent to approval, the division of forestry shall
file the approved registration in the district office where the
commercial timbering operation is located and provide a copy of
the registration form to the office of water resources of the
division of environmental protection and to the tax division of
the department of tax and revenue.
(g) The registration form and all supporting documentation,
if any, are public records. Upon the request of any member of
the public, the division of forestry or the division of
environmental protection shall immediately make any approved
registration form or registration form awaiting approval
available for review by the public in the district office for the
area where the commercial timbering operation is located.
(h) At each site at which a commercial timbering operation
is to be conducted, and after registration is approved, the
registrant shall post a notice, in such form and content as may
be required by the division of forestry, which shall include, but not be limited to, the name of the registrant and the on-site
supervisor, the address and telephone number of the registrant
and the on-site supervisor, location and telephone number of the
district office for the area in which the site is located, and
the location and telephone number of the office of water
resources for the area in which the site is located. The notice
shall be posted at the entrance to the site, in such manner as to
be clearly visible to passersby.
(i) The division of forestry may require a fee of up to
fifty dollars for the review and processing of each registration.
§22-11A-7. Performance standards.
Each commercial timbering operation must, at a minimum, meet
the following standards:
(a) Except for stream crossings, a haul road, skid road,
landing, or equipment trail may not be located within one hundred
feet of any waters: Provided, That where site characteristics
require placement within that limit, the registrant must develop
a site-specific plan for the commercial timbering operation,
establishing appropriate practices to be used to minimize the
impact to these waters: Provided, however, That the plan must be
approved by the director prior to locating the road, landing or
trail within the limit.
(b) Haul roads may have a slope no greater than ten per
cent, and skid roads may have a slope no greater than fifteen percent: Provided that where site characteristics require slopes
in excess of these limits, the registrant must develop a site-
specific plan for the commercial timbering operation,
establishing appropriate practices to be used to minimize any
adverse effects which may result from exceeding these limits:
Provided, That the plan must be approved by the director prior to
constructing the haul road or skid road.
(c) Culverts, bridges, or other drainage structures must be
used to cross intermittent or perennial streams. All stream
crossings must be perpendicular to the stream. All culvert
openings must be adequate to carry a ten year, twenty four hour
rainfall event from the contributing watershed. All culverts
used to cross intermittent or perennial streams must extend at
least ten feet on either side of the outermost edge of the
roadway crossing the stream: Provided, That where site
characteristics make this requirement concerning the length of
the culverts impractical the registrant must develop a site
specific plan for the stream crossing, establishing appropriate
practices to be used to minimize adverse effects which may result
from failure to follow this standard on culvert lengths:
Provided, however, That this plan must be approved by the
director prior to constructing the stream crossing. Sediment
control devices must be placed on each corner of the stream
crossing.
(d) Slash, tree tops or butt ends may not be deposited in
any waters or any location in such close proximity to any waters
that they might reasonably be expected to be washed into the
waters.
(e) Water bars and ditches must be installed on all haul
roads, skid roads or equipment trails immediately upon completion
of the entire timber harvesting operation or upon the completion
of any portion of the timber harvesting operation for which the
haul road or timbering road is intended to be used.
(f) A permanent vegetative cover must be established on all
landings, skid roads, haul roads or equipment trails as soon as
possible after completion of use of those areas as part of a
commercial timbering operation. A temporary vegetative cover or
appropriate mulch must be used until a permanent vegetative cover
can be established.
(g) Best management practices appropriate to the commercial
timbering operation must be used.
(h) Except for the road or roads leading to and crossing a
stream, no part of any commercial timbering operation may be
located within one hundred feet of a perennial or intermittent
stream: Provided, That where site characteristics require
placement within that distance, the registrant must develop a
site-specific plan for the commercial timbering operation,
establishing appropriate practices to be used to minimize the impact to these waters: Provided, however, That the plan must be
approved by the director prior to locating the commercial
timbering operation within the distance.
(i) A commercial timbering operation may not allow rocks,
dirt, or debris of any kind which was disturbed by the commercial
timbering operation to leave boundary of the operation, including
all roads, landings, and equipment trails.
§22-11A-8. Training and certification.
(a) After the first day of July, one thousand nine hundred
ninety three, loggers may not engage in commercial timbering
operations in the state of West Virginia unless that logger has
received training in sediment control and use of best management
practice and has participated in and successfully completed a log
road workshop sponsored by the division of forestry.
(b) The division of forestry shall establish a regular
schedule of log road workshops at convenient locations throughout
the state to provide training and instruction leading to
certification. These log road workshops shall provide specific
training in planning log road and landing layout, proper road
construction, proper installation and maintenance of best
management practices, proper reclamation techniques and any other
information pertinent to conducting commercial timbering
operations in compliance with the provisions of this article.
The division of forestry may charge each participant in a log road workshop a reasonable fee.
(c) Upon any person's successful completion of the log
road workshop, the division of forestry shall provide that person
with proof of the completion by issuing a numbered certificate to
that person. The forestry division shall maintain a record of
each certificate issued and the person to whom it was issued.
(d) Any certificate is valid for a period of two years from
its issuance. The division of forestry may condition renewal of
the certificate upon successful completion of a log road workshop
or such additional training as the division of forestry may
require. If the recommended best management practices have been
significantly modified since the issuance or last renewal of the
certificate then the division of forestry shall condition renewal
of the certificate upon successful completion of a log road
workshop or such additional training as the division of forestry
may require.
§22-11A-9. Inspections.
(a) The chief may perform inspections of commercial
timbering operations to ensure compliance with this article and
the approved registration and to determine whether the best
management practices in the registration are effective in
reducing sedimentation resulting from the commercial timbering
operation. The chief may perform inspections to the same extent
as provided in chapter twenty, article five-a of the code of West Virginia and shall inspect each commercial timbering operation at
least once during the operation. The chief shall take
enforcement action, including imposition of appropriate civil
administrative penalties, for any violation of this article or
noncompliance with the approved registration, including the
failure to install any sediment control device listed in the
approved registration form. If the chief determines that the
logger or registrant is not complying with this article or the
approved registration plan and that this failure to comply is
resulting or could be expected to result in imminent harm to the
waters of West Virginia then the chief shall immediately order
that the commercial timber operation cease until the violation of
this article or the approved registration plan has been
corrected.
(b) Any employee of the division of environmental protection
or the division of forestry who regularly carries out inspection
or enforcement actions pursuant to this article may initiate
enforcement action as described in this article whether or not
the employee's duties routinely include enforcement of the
Logging and Sediment Control Act.
(c) If the director determines that the measures described
in a previously approved registration form are not effectively
controlling sediment from a commercial timbering operation, the
director shall require that the registrant submit a modified registration form describing additional measures to control
sediment. If the commercial timbering operation is completed,
and the director determines that the logger or registrant did not
properly perform the measures described in the registration form,
or that measures taken in compliance with the approved
registration form were not adequate to control sediment from the
commercial timbering operation, the director may require the
logger or registrant to reenter the site and institute
appropriate measures to control sediment.
§22-11A-10. Appeal and judicial review.
(a) Any person having an interest which is or may be
adversely affected, or who is aggrieved by an order of the
director or chief, or by the approval or denial of a
registration, may appeal to the water resources board in the same
manner as appeals are taken under the water pollution control
act, section twenty-one, article eleven, chapter twenty-two of
this code.
(b) Any party, including the director or the chief,
adversely affected by an order made and entered by the
environmental quality board may obtain judicial review thereof in
the same manner as provided for under section twenty-two, article
eleven of the water pollution control act.
§22-11A-11. Enforcement.
(a) Persons violating this article are subject to the civil penalties and injunctive relief provided for in section twenty-
two, article eleven, chapter twenty-two of this code; and the
criminal penalties provided for under section twenty-four,
article eleven, chapter twenty-two of this code. In seeking
injunctive relief for any violation of this article or a
registration, it is not necessary for the chief to allege or
prove, at any stage of the proceeding, that irreparable harm will
occur if injunctive relief is not granted.
(b) Within six months of the effective date of this article
twenty-two, the director shall propose legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code, establishing civil administrative penalties, enforceable by
the chief, to be used as an alternative enforcement mechanism to
those civil penalties described in subsection (a) of this
section: Provided, That proposed legislative rules which would
establish civil administrative penalties may not be promulgated
as emergency legislative rules at any time prior to the time that
the Legislature acts upon proposed legislative rules submitted to
the Legislature during the regular session of the Legislature in
the year two thousand one. The legislative rules shall include
a provision which makes the failure to obtain approval of a
registration form before beginning a commercial timbering
operation subject to an administrative penalty of two thousand
five hundred dollars, in addition to any other penalties, civil or criminal, which may be provided for by this article.
(c) There is hereby created in the state treasury a special
account known as the "Logging and Sediment Control Enforcement
Fund." Moneys received as a result of the imposition of civil
administrative penalties in accordance with the provisions of
this article shall be deposited in the "Logging and Sediment
Control Enforcement Fund" and must be used by the director either
for enforcement of this article or correcting the failure of any
commercial timbering operation to comply with best management
practices or the requirements of this article and to ameliorate
any damage caused by such failure to comply.
§22-11A-12. Bonding.
(a) Either prior to or simultaneously with the submission of
a registration form to the division of forestry the registrant
must post a performance bond, with good and sufficient surety,
with the division of forestry in the amount equal to five hundred
dollars for each acre of the commercial timbering operation.
(b) Upon completion of a commercial timbering operation, the
registrant may request a release of the bond posted for that
operation. As soon as practical after the receipt of a request
for release of the bond, the division of forestry shall inspect
the site of the commercial timbering operation to determine
compliance with best management practices, the registration form,
and the requirements of this article. If, upon inspection, the division of forestry determines that the commercial timbering
operation has complied with the best management practices, the
registration form, and the requirements of this article then the
division of forestry shall release the bond posted.
(c) In the event that the division of forestry determines
that a commercial timbering operation has not complied with best
management practices, the registration form, or the requirements
of this article then the division of forestry shall forfeit the
bond and apply the proceeds of that bond forfeiture to correcting
the failure of the commercial timbering operation to comply with
best management practices, the registration form, or the
requirements of this article and to ameliorating any damage
caused by such failure to comply.
§22-11A-13. Timbering operations fund.
There is hereby created in the state treasury a special
account designated the "Timbering Operations Fund." All license
fees collected pursuant to this article shall be credited to the
fund. The director of forestry is authorized to expend money
from the fund solely for the administration of this article and
for no other purpose.
§22-11A-14. Reports.
Both the director of the division of forestry and the
director of the division of environmental protection shall submit
annual reports describing compliance with this act by the timbering industry. The reports shall include, but not be
limited to, the number of licenses issued, the number of
enforcement actions taken and their resolution, the number of
applicants for certification and the number of certificates
issued, the revenues raised, the number of persons attending
workshops, estimates of timbering operations which were operated
unlawfully, estimates of the number of acres of timber harvested
and any other pertinent information related to the timbering
industry. The reports shall be submitted by the first day of
January, two thousand two and shall be submitted to the governor,
the president of the Senate and the speaker of the House of
Delegates.
NOTE: This bill repeals the "Logging Sediment Control Act"
created in Article 1B, Chapter 19 of the Code of West Virginia in
1992. It then basically rewrites that act in a new article in
Chapter 22 of the code, again to be referred to as the "Logging
Sediment Control Act". It deals with sediment control during
commercial timber harvesting operations and development by the
Division of Natural Resources of sediment control program for
commercial timber harvesting operations including adoption of
best management practices. It also requires submission to the
Division of Forestry of registration forms prior to conducting
commercial timber harvesting activities with a procedure for
approval of registration forms by the Division of Forestry.
§§22-11A-1, et seq. (formerly §§19-1B-1 et seq.) has been
rewritten and moved; therefore, strike-throughs and underscoring
have been omitted.