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NO. 15. AN ACT RELATING TO THE REGULATION OF HEAVY CUTTING OF THE TIMBER RESOURCES .

(H.536)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 10 V.S.A. § 2622 is amended to read:

§ 2622. RULES; HARVESTING TIMBER; FORESTS

*[The commissioner, subject to the approval of the secretary, may adopt rules in the name of the agency establishing]* The commissioner shall adopt rules to establish methods by which the harvest and utilization of timber in private and public forest land will be consistent with continuous forest growth, including reforestation, will prevent wasteful and dangerous forestry practices, will regulate heavy cutting, will encourage good forestry management, will enable and assist landowners to practice good forestry management, and will conserve the natural resources consistent with the purposes and policies of this chapter, giving due consideration to the need to assure continuous supplies of forest products and to the rights of the owner or operator of the land. Such rules shall be advisory, and not mandatory, except that the rules adopted under section 2625 of this title shall be mandatory as shall other rules specifically authorized to be mandatory.

Sec. 2. 3 V.S.A. § 2805 is amended to read:

§ 2805. ENVIRONMENTAL PERMIT FUND

There is hereby established a special fund to be known as the environmental permit fund for the purpose of implementing the programs specified under the provisions of 3 V.S.A. § 2822(h) and (i). Revenues to the fund shall be those fees collected in accordance with 3 V.S.A. § 2822(h), 10 V.S.A. § 2625, gifts and appropriations. The secretary of natural resources shall be responsible for the fund and shall account for the revenues and expenditures of the agency of natural resources. Any fee required to be collected under 3 V.S.A. § 2822(j)(1) shall be utilized solely to cover all reasonable (direct or indirect) costs required to support the operating permit program authorized under 10 V.S.A. chapter 23. Any fee required to be collected under 3 V.S.A. § 2822(k), (l) or (m) for air pollution control permits or registrations or motor vehicle registrations shall be utilized solely to cover all reasonable (direct or indirect) costs required to support theprograms authorized under 10 V.S.A. chapter 23. Fees collected pursuant to subsections 2822(k) and (l) of this title, and a portion of the fees collected pursuant to subsection 2822(m) of this title shall be used by the secretary to fund activities related to the secretary's hazardous air contaminant monitoring program. The environmental permit fund shall be subject to the provisions of subchapter 5 of chapter 7 of Title 32, except that any unencumbered environmental permit fund balance in excess of those fees collected under section 2822(k), (1) and (m) of this title, and in excess of $100,000.00 from those fees collected from environmental permit fund sources other than section 2822(k), (1) and (m) at the close of a fiscal year shall revert to the general fund.

Sec. 3. 10 V.S.A. § 2625 is added to read:

§ 2625. REGULATION OF HEAVY CUTTING

(a) Definitions. For purposes of this section, the following definitions shall apply:

(1) "Acceptable growing stock" means a stem having a diameter of 4.5 inches or greater at breast height which has the potential of producing a sawlog product of a commercial species of any grade, now or in the future.

(2) "Heavy cut" means a harvest leaving a residual stocking level of acceptable growing stock below the C-line, as defined by the United States Department of Agriculture silvicultural stocking guides for the applicable timber type.

(3)(A) "Landowner" means a person or entity that owns or controls the land or the right to harvest timber or other wood products, including:

(i) an individual, partnership, corporation, association, unincorporated organization, trust or other legal or commercial entity, including a joint venture or affiliated ownership;

(ii) a municipality or state agency;

(iii) individuals and entities affiliated with each other for profit, consideration, or any other beneficial interest derived from the harvest of timber or other wood products;

(iv) an individual's parents, children and spouse, unless the individual establishes that he or she will derive no profit or consideration, or acquire any other beneficial interest from the harvest of timber or other wood products by the parent, childor spouse;

(B) The following individuals and entities shall be presumed not to be affiliated for the purpose of profit, consideration, or other beneficial interest within the meaning of this chapter, unless there is substantial evidence of an intent to evade the purposes of this chapter:

(i) a stockholder in a corporation shall be presumed not to be affiliated with others, solely on the basis of being a stockholder, if the stockholder and the stockholder's spouse, parents, children, and siblings own, control or have a beneficial interest in less than five percent of the outstanding shares in the corporation;

(ii) an individual shall be presumed not to be affiliated with others, solely for actions taken as an agent of another within the normal scope of duties of a court appointed guardian, a licensed attorney, real estate broker or salesperson, engineer, land surveyor, forester, or retail or wholesale vendor of wood products, unless the compensation received or beneficial interest obtained as a result of these duties indicates more than an agency relationship;

(iii) a seller or chartered lending institution shall be presumed not to be affiliated with others, solely for financing all or a portion of the purchase price at rates not substantially higher than prevailing lending rates in the community, and subsequently granting a partial release of the security when the buyer harvests timber or other wood products;

(iv) a logging contractor shall be presumed not to be affiliated with others solely for conducting a harvest of timber or other wood products, while subject to supervision and control of a landowner, unless the logging contractor holds an ownership interest in the land or standing timber, or is affiliated with others holding an ownership interest in the land or standing timber.

(b) Notice of intent to cut. The following landowners shall file a notice of intent to cut with a department field forester at least 15 days before commencing a heavy cut:

(1) A landowner who intends to conduct a heavy cut of 40 acres, or more, on land owned or controlled by the landowner.

(2) A landowner who intends to conduct a heavy cut and has conducted heavy cuts on other lands owned or controlled by the landowner, within the five previous years:

(A) within a radius of 1,000 feet of the proposed harvest, so that the total acreage subjected to a heavy cut has exceeded or will exceed 40 acres; or

(B) within a radius of two miles of the proposed harvest, so that the acreage subjected to a heavy cut has exceeded or will exceed 80 acres.

(c) Exemptions. Upon the filing of a notice of intent to cut, a department field forester shall determine that the cut is exempt, and that no further review is necessary, if one of the following apply:

(1) The landowner has filed the notice of intent to cut for informational purposes, even though the proposed harvest is not subject to regulation as a heavy cut under the provisions of this section.

(2) The landowner certifies that the proposed heavy cut is intended to carry out an agricultural conversion plan, and that the conversion will be completed and the land will be in agricultural production within five years.

(3) The landowner certifies that the proposed heavy cut is intended to carry out a conversion that is subject to regulation by a district environmental commission and the environmental board under 10 V.S.A. chapter 151 or by the public service board under Title 30.

(4) The landowner certifies that the proposed heavy cut is consistent with one of the following:

(A) A forest management plan currently in effect and approved by the department under the current use assessment program.

(B) A chip harvesting plan currently in effect and approved by the department of fish and wildlife under a permit issued under 30 V.S.A. § 248.

(C) Another forest management plan currently in effect and approved by the department under department rules in effect at the time of approval of the plan.

(d) Authorization to proceed. If an exemption does not apply and the applicable fee has been paid, the department field forester shall review the proposed heavy cut. If theproposal is in conformance with the applicable rules adopted by the department, the department field forester shall issue authorization to proceed. If the proposed heavy cut is not in conformance with the rules, authorization to proceed shall be denied and the proposed heavy cut shall be prohibited.

(e) Processing of a notice of intent to cut.

(1) Within 15 days of the filing of a notice of intent to cut, a department field forester shall notify a landowner if a notice of intent is incomplete and more information is required in order to determine whether or not an exemption applies.

(2) Within 15 days of the filing of a complete notice of intent, a department field forester:

(A) shall determine whether or not a proposed heavy cut is exempt, and

(B) in case a proposed heavy cut is not exempt, shall determine whether authorization to proceed shall be issued or denied, and

(C) shall notify the landowner, and any town in which the cut is proposed, of that determination or those determinations.

(3) If, within the relevant 15-day period, a department field forester fails to make a determination regarding exemption or fails to request additional required information from a landowner, the proposed heavy cut shall be deemed to be exempt from the review requirements of this section. This exemption shall not relieve the landowner from conforming with the requirements of the approved management or chip harvesting plan, the proposed harvest plan described in the notice of intent to cut, or any applicable rules adopted by the department.

(f) Appeals. If the exemption is denied or if authorization to proceed is denied, the landowner shall have 30 days in which to file an appeal with the commissioner.

(1) Upon the filing of an appeal, the commissioner may appoint a review team of natural resources professionals to visit the site, gather information about the proposed heavy cut, and make recommendations to the commissioner. The commissioner may also appoint a hearing officer to take sworn statements of the landowner, the review team, and other witnesses called by the landowner or the hearing officer, and make recommendationsto the commissioner.

(2) The commissioner shall issue a decision in writing within 30 days of the receipt of an appeal.

(3) The landowner may appeal the commissioner’s decision within 30 days to the environmental court. The court shall review the case on the record, and affirm the decision, unless it finds that the commissioner did not have reasonable grounds on which to base the decision.

(g) Rulemaking authority. The commissioner shall adopt rules relating to heavy cutting subject to the notice of intent to cut requirements established by this section. The rules shall establish:

(1) Silvicultural guidelines and forestry standards.

(2) Requirements with respect to soil productivity, water quality, wetlands, riparian zones, significant wildlife habitat areas, unique or fragile areas, regeneration, scenic quality, and unusual environmental events such as those causing severe damage from wind, ice, disease or insect infestation.

(3) Procedures relating to the filing and processing of a notice of intent to cut.

(h) Fees. There shall be a fee of $100.00 for filing a notice of intent to cut for a cut that is not exempt from review under the provisions of subsection (c) of this section and when a field review is required to assess the proposed cut. Fees paid for proposals that are later deemed to be entitled to an exemption shall be returned to the landowner. Fees shall be deposited into the environmental permit fund established under 3 V.S.A. § 2805.

(i) Applicability to public lands.

(1) The provisions of this section shall apply to heavy cuts on public lands, except that no heavy cut may occur on certain lands owned by the agency of natural resources, unless the proposed heavy cut is included in the state’s management plan that has been adopted subsequent to a public review process.

(2) Any heavy cut on public lands shall be conducted in accordance with applicable rules adopted by the commissioner.

(j) Enforcement. A violation of the provisions of this section or the rules adoptedunder this section, false certification under this section, and noncompliance with a harvesting plan or a management plan that constitutes an exemption to this section shall each constitute a violation as defined under chapter 201 of this title and shall be subject to enforcement under that chapter and under chapter 211 of this title.

Sec. 4. 10 V.S.A. § 8003(a)(17) is added to read:

(17) 10 V.S.A. § 2625, relating to heavy cutting of timber.

Sec. 5. IMPLEMENTATION

Notwithstanding provisions to the contrary located in 3 V.S.A. chapter 25, rules adopted under subsection 2625(g) may be adopted as emergency rules, and shall remain in effect until amended through the normal rulemaking process. The commissioner, in cooperation with the forest products industry, shall develop an educational program designed to provide information to landowners, loggers and other interested parties, concerning this act and department rules adopted under this act.

Sec. 6. REPORTS ON RULEMAKING STATUS AND IMPACT OF THIS ACT

The commissioner of forests, parks and recreation shall report to the legislature by January 15, 1999 on the status of the rulemaking process required under this act, and by January 15, 2002 on the impact of this act on the forest products industry and on the sustainability of Vermont’s forest resources.

Sec. 7. EFFECTIVE DATE

This act shall take effect on passage.

Approved: May 6, 1997