POSITION SUMMARY
It is the position of the West Virginia Highlands Conservancy that West Virginia is currently deficient in its regulation of the environmental effects of logging. Although some of the deficiencies could be corrected with better enforcement, we believe that in order to correct current problems it would be necessary to make changes to the law. Any changes to the law should incorporate the following:
1. Better Enforcement
The basis of the current law is the Best Management Practices (BMPs). These are a set of steps a responsible operator would take to prevent erosion, etc. They suggest things such as water bars, reseeding, etc. The West Virginia Division of Forestry publishes a pamphlet of about 30 pages which contains these Best Management Practices.
The BMPs are nominally mandatory under present law. The difficulty is that the present law puts enforcement in the hands of an agency (Division of Forestry) that is not at all enthusiastic about enforcement and creates a cumbersome procedure for enforcement. The result is that there is little enforcement.
Under current law, the inspector has to see erosion occurring before he or she may take enforcement action. When he sees it, he can tell the operator to correct the problem. The difficulty with this approach is that it has almost no chance of encouraging compliance when the operator is not there.
Just as in any industry, a timber operator has to do some things that do not make a profit. He makes money cutting trees. The only reason to do the things such as install water bars is either to be a good citizen or because somebody makes him do it.
Under current law, the smart operator would never install any of the erosion control devices nominally required by the Best Management Practices.. There is a good chance that the inspector will never visit the site. If he does, all the operator risks is having to install the erosion control devices which the law requires. There are no fines. There is no incentive to do erosion control on every site; the easiest way is to do it only after you are told you have to.
If we ran traffic control that way we could all go 100 miles per hour until we got caught. Then we could start going 65. There would be no incentive to go slower until caught.
The law should be changed. It should mandates an inspection of each site and requires the inspector to take enforcement action for each violation. It should include a system of civil and administrative penalties. It should include criminal penalties. Only then would there be an incentive to do what the law requires in each instance, not just when an inspector has ordered compliance.
Under current law, the inspector has to see erosion occurring before he can take enforcement action. An inspector is free to never install any of the Best Management Practices designed to control erosion. If it is not raining the day the inspector comes, there is no erosion to observe and no enforcement action. The law should be changed to make failure to follow the BMPs a violation.
In general, there are two approaches to environmental regulation. You can have a set of steps designed to prevent the pollution. Following this set of steps is considered compliance. The law assumes that the steps are well enough designed that if they are faithfully followed they will prevent pollution.
This is the same model as with auto safety. We have laws requiring brakes, headlights, horns, etc. Not having one of those pieces of equipment is a violation even if the auto has never been in a wreck and the lack of this equipment has never caused any harm to anyone. We have faith that this list of required equipment adds up to a safe car. Even when there is absolutely no evidence that this particular car has caused or is causing an unsafe roadway, lacking the equipment is a violation.
The second approach is to mandate a result and ignore steps designed to achieve it. Should someone manage to achieve the result in spite of doing everything in the worst way possible, then that would not be a violation. Were automobiles regulated that way people could speed, drive with no headlights, brakes, etc. So long as they avoid an accident, they are in compliance.
For timbering, current law takes the second approach. If there is no sediment in the stream, there is no violation. While this approach would work if there were an inspector present at all times on all jobs, this is impractical. The only way to ensure there is no erosion is to require that all timber operators take the steps that will control erosion. This will assure that there is no erosion even when no inspector is present.
The law should takes both approaches with the emphasis upon the first approach. It should assume that the BMPs need to be installed to keep mud out of the streams. It should assume that even if there is no mud in the streams now, absence of BMPs makes mud in the stream inevitable at the next rain. Failure to install the BMPs should be a violation whether there is mud in the stream or not. Mud in the streams should still be a violation.
This combination of both approaches is, more or less, the approach the surface mining act takes. For example, it requires a sediment control pond. Even if there has been no rain for a month and the pond doesn’t have any water to treat (in this context "treatment" is catching moving water and holding it until the dirt settles out) the company still has to have one. It doesn’t matter that there is no water that day and that the same amount of sediment (none) would wash into a receiving stream whether the pond was there or not. They have to have one because eventually it will rain and, if the pond is not in place, there will be sediment in the streams.
The law on timbering should do the same thing. It should mandate the BMPs and assume that, if followed, they will keep mud from the streams.
The new law should move enforcement from its current home in the Division of Forestry to the Division of Environmental Protection. The Division of Forestry’s purpose is promote timber harvesting. It is not suited to regulate it as well. It should also give any citizen the right to accompany the inspector when the inspection is the result of a complaint by that citizen.
2. The law should encourage and require planning of timber operations to prevent erosion. Under current law, companies have to register the operation within three days after the logging begins. This does nothing to encourage timber operators to plan the operation in such a way that erosion is prevented or to ensure that they do any planning of any sort. The law should require that the timber operator submit its plan to the Division of Forestry before logging begins and that the Division of Forestry review the plan, approve the location of roads, etc.
3. The law should require a performance bond. This would prevent irresponsible loggers from abandoning a site without reseeding it, taking steps to prevent erosion in the future, etc.
4. The law should requires adjoining landowner notification. The operator should be required to notify the landowners on all sides that he has submitted a plan for timbering in a particular location. Adjoining landowners need to be informed of what is taking place in their area, both so they can be watchful for erosion problems from the site and so they can prevent timber theft.
PROPOSED BILL
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 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; 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 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.
22-11A-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 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 of 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, 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 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.
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, two thousand and 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 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 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.
22-11A-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 per cent, 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.
(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 operator 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 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 such manner as to be clearly visible to passersby.
(I) The division of forestry may require a fee of up to one hundred 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) 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 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.
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 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.
22-11A-9. Inspections.
(a) The chief or the West Virginia division of forestry 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 operator 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) When any person notifies the division of forestry or the division of environmental protection of a suspected violation of this article, the agency notified shall forthwith perform an inspection of the operation suspected of the violation of this article. When any inspection is undertaken in response to a report of a possible violation of this article or other complaint, the person who made the report or complaint shall be notified of the date of the inspection and given an opportunity to accompany the employee who undertakes the inspection. No person may disclose the identity of the person who notified the state agency of the suspected violation without the permission of that person.
(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 operator 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 operator 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 shall require the logger or operator to reenter the site and institute appropriate measures to control sediment.
22-11A-10 Violations; criminal penalties
(a) Any person who causes pollution or who fails or refuses to discharge any duty imposed upon him or her by this article or by any rule promulgated pursuant to this article or who fails to follow the best management practices or who fails to follow any term of the registration approved pursuant to this article or who fails or refuses to have a commercial timbering operation approved as required by this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for a period not exceeding six months, or by both fine and imprisonment.
(b) Any person who intentionally misrepresents any material fact in registration plan or other document filed or required to be maintained under the provisions of this article or any rules promulgated by the director thereunder is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than one thousand dollars nor more than ten thousand dollars or by imprisonment in the county jail not exceeding six months or by both fine and imprisonment.
(c) Any person who willfully or negligently violates any provision of this article or any rule promulgated pursuant to this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than two thousand five hundred dollars nor more than twenty-five thousand dollars per day of violation or by imprisonment in the county jail not exceeding one year or by both fine and imprisonment.
(d) Any person convicted of a second or subsequent willful violation of subsections (b) or (c) of this section or knowingly and willfully violates any provision of this article or any rule or order issued under or subject to the provisions of this article, or knowingly and willfully violates any provision of this article, is guilty of a felony, and upon conviction shall be imprisoned in a correctional facility not less than one nor more than three years, or fined not more than fifty thousand dollars for each day of violation, or both fined and imprisoned.
(e) Any person may be prosecuted and convicted under the provisions of this section notwithstanding that none of the administrative remedies provided for in this article have been pursued or invoked against said person and notwithstanding that civil action for the imposition and collection of a civil penalty or an application for an injunction under the provisions of this article has not been filed against such person.
22-11A-11 Penalties
(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, 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. 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. 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-13. 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 such failure to comply.
22-11A-14. 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-15. 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 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.