Senate Bill No. 87
(By Senators Mitchell, Hunter, Kessler, Rowe and Bowman)
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[Introduced January 9, 2002; 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.
(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) 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 three 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.