Committee hears options to retroactively validate 'heavy cut' forestry rule after publication lapse
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Summary
Committee members were briefed on a long-standing 'heavy cut' rule used by the Department of Forests, Parks and Recreation that may not have been published in the state administrative code as required by a 2016 change; staff outlined two remedies—legislative language to declare the rule continuous or formal adoption by the agency.
Committee staff told the Legislative Committee on Administrative Rules on May 15 that the Department of Forests, Parks and Recreation has been administering a "heavy cut" rule adopted as an emergency rule in 1997 but that the rule may not have been published in the Vermont code of administrative rules as required by a 2016 statutory amendment that repealed rules not published by July 2018.
Staff said the heavy cut rule, which references U.S. Department of Agriculture silvicultural standards, governs situations where a timber harvest leaves a residual stock below a specified "C-line" and applies on parcels over 40 acres; it requires notice to and authorization from the department and includes an application form and USDA standards incorporated by reference. Agency representatives have been issuing authorizations under the rule since 2018 but, according to staff, did not publish the rule in the code. The department has not based enforcement actions on the rule itself but has used the underlying statute for enforcement.
Committee staff said two remedial options are available: (1) add retroactive validating language in pending legislation to declare the rule never repealed and to require publication within a year, preserving authorizations issued since 2018; or (2) have the agency formally adopt or re-adopt the rule and publish it. Staff reported drafters had proposed retroactive language and that three bills in the Senate had been approached about including it, but the committee was told the timing late in the legislative session makes passage uncertain.
Because the rule was originally adopted as an emergency rule in 1997 and remained unamended, staff said that historical framing contributed to the confusion when the 2016 "repeal by operation of law" provision took effect in 2018.
No committee action or vote was recorded on the heavy cut rule during the meeting. Staff indicated the matter could return to the committee depending on whether legislative language is adopted or the agency pursues formal rule publishing.