A BILL to repeal article one-b, chapter nineteen of the code of Wes

Senate Bill No. 658
(By Senators Mitchell, Hunter, Kessler, Rowe and Bowman)
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[Introduced March 26, 2001; referred to the Committee on Natural Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact article one-b, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, 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 environmental protection 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; and review.

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 amended and reenacted to read as follows:
ARTICLE 1B. SEDIMENT CONTROL DURING COMMERCIAL TIMBER HARVESTING.
§19-1B-1. Short title.
This article shall be known and cited as the "Logging Sediment Control Act."
§19-1B-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 environmental protection and the division of forestry, a sediment control program to reduce the resulting sedimentation impacts from timbering to the waters of the state.
§19-1B-3. Definitions.
(a) "Best management practices" means sediment control measures, structural or nonstructural, previously developed as a part of the implementation of section two hundred 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.
§19-1B-4. Development of sediment control program for commercial timbering operations.

(a) The directors of the division of forestry and the division of environmental protection 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 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 of the division of environmental protection 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, chapter 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 of environmental protection and the forestry division, at least every three years to ensure that those practices reflect and incorporate current technologies.

(c) 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.
§19-1B-5. Registration and licensing.
(a) No logger or other person may engage in a commercial timbering operation after the first day of July, two thousand one--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 "operator".

(b) The registration form submitted to the division of forestry shall include:

(1) Name, address and telephone number of the operator 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) Business tax number or social security number of the operator;

(5) 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;

(6) Sketch map of boundary of commercial timbering operation, including delineation of main haul roads, landings and stream crossings;

(7) Description of sediment control practices to be used by the logger during the timbering operation;

(8) Estimated starting and completion dates;

(9) The acreage over which logging operations are contemplated;

(10) An acknowledgment that the operator will conduct the operations in compliance with the provisions of this article, the West Virginia water pollution control act, and any applicable rules promulgated pursuant to this article or the West Virginia water pollution control act;

(11) A certification satisfactory to the director that all permits required under state law have been obtained;

(12) Signature of operator; and

(13) Name and certification number of the logger who is to act as the on-site supervisor: 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 one hundred 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 two 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 two or more separate occasions during the year prior to
the application for renewal then the division of forestry shall refuse to renew the applicant's license. Any person who has been refused renewal of a license solely because of his or her having been in violation of the requirements of this article may, upon completion of a log road workshop and such additional training or actions as the division of forestry may require, petition the division for renewal of his or her license. Upon receipt of such petition, the division of forestry may renew the petitioner's license regardless of the petitioner or persons controlled by the petitioner having been in violation of the requirements of this article.
§19-1B-6. Registration form approval required.
(a) At the time of the submission to the division of forestry of the registration form, the operator 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.

(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) If any part of any commercial timbering operation for which approval of registration is sought is to be located on land where the slope is greater than fifty percent, the division of forestry may not approve that registration until it has:

(1) Made a field inspection of the location of the proposed commercial timbering operation; and

(2) Made an affirmative finding that the proposed operation will not cause the addition of sediment to the waters of West Virginia and will not result in instability of the slope where the operation is to be located.

(e) 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 operator 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.

(f) Every registration form submitted shall contain a statement acknowledging the chief's right to inspect the commercial timbering operation.

(g) 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.

(h) 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.

(i) At each site at which a commercial timbering operation is to be conducted, and after registration is approved, the operator shall post a notice, in a form and content as may be required by the division of forestry, which shall include, but not be limited to, the name of the operator and the on-site supervisor, the address and telephone number of the operator 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 and at each log landing, in a manner as to be clearly visible to passersby.

(j) The division of forestry may require a fee of up to one hundred dollars for the review and processing of each registration.
§19-1B-7. Performance standards.
Each commercial timbering operation must, at a minimum, meet the following standards:

(a) Haul roads may have a slope no greater than ten percent, 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 operator 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.

(b) 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 operator 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.

(c) 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.

(d) 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.

(e) 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.

(f) Best management practices appropriate to the commercial timbering operation must be used.

(g) 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.

(h) 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.

(i) A commercial timbering operation may not allow mud or dirt from the timbering operation to be tracked or otherwise transported onto any public road.
§19-1B-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 workshops on, at a minimum, log roads, chain saw use, and first aid 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.
§19-1B-9. Bonding.
(a) Either prior to or simultaneously with the submission of a registration form to the division of forestry the operator 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 operator 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 failure to comply.
§19-1B-10. 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.
§19-1B-11. 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: The purpose of this bill is to strengthen logging sediment control standards.

This article has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.