Environmental activists are once again ringing the alarm over a loophole in the Department of Natural Resource’s foresting permits that allows developers to forgo environmental impact studies by requesting an additional permit through the county.

According to the Whidbey Environmental Action Network, or WEAN, a Langley-based nonprofit, county officials can easily fix the problem with an ordinance or simply complying with the six-year development moratorium on any Class 3 state permit.

As issued by the DNR, Class 1 logging means cutting less than 5,000 board feet or one logging truckload. For Class 1, no permit is required.

Class 2 indicates no environmental impact. Class 3 acknowledges there may be some impact, as the project is near a wetland or stream or slope, but not enough to warrant an assessment.

Class 4 requires permitting to convert the forests for a use other than forestry, which includes an assessment.

In a recent episode of WEAN’s podcast, “Action Hour,” co-founder Marianne Edain said for decades she has noticed a pattern of applicants filing for “non-conversion” Class 3 permits, which requires a six-year moratorium on development. Then, applicants request the county to lift the moratorium via a clearing and grading permit so they can develop without an environmental impact assessment.

“It’s almost meaningless,” Edain said. “You’ve been through the whole shebang with the county, and then at the end you go to the DNR and say, ‘Can I have a Class 4 please?’”

A November 2022 Class 3 permit indicates logging on Koontz Road on North Whidbey, a documented habitat for western toads. In July of this year, it appears new owners received a Class 4 permit to address the damage.

Island County Commissioner Janet St. Clair said that under a previous public works director, the authority to lift a moratorium was allowed. Previous commissioners gave direction to stop the moratorium lifts unless necessary for safety or if actions taken created a significant public nuisance.

St. Clair said these decisions are taken to the board and assessed on an individual basis, and her goal has been to stop developers from taking advantage of the loophole.

In general, she said, she also hopes to curtail deforestation. Commissioners Melanie Bacon and Jill Johnson did not respond to a request for comment.

The action network challenged the county’s ability to do this at the time. In a 2018 settlement, the county tightened the language and required a record if a property has a moratorium on development.

Often times loggers receive Class 3 permits though they are obviously logging for development, Edain said.

“What we see is a whole lot of Class 3s that you look at them kind of cross-eyed and go, ‘Wait a minute, what are they doing here?’” she said.

This summer, Nielsen Brothers Inc. received a Class 3 permit to log near Concrete, despite being on a steep, 1,300-foot slope over a community and a road. This community is just 26 miles from Oso, where many point to logging as the cause of the worst landslide in the country in 2014.

The Forest Practices Act of 1974 protects public resources over the general function of the ecosystem with the goal of creating a viable forest products industry, not a viable forest, said WEAN co-founder Steve Erickson.

Natural Resource’s concern with Oso was the damage to the roadway, he said, not that it killed 43 people and destroyed 49 homes.

Erickson said a greater change would occur at the state level, to allow county law to supersede the Forest Practices Act, though the county could remove the incentive for applicants to pretend like their logging isn’t pre-development. Commissioners could pass a law so if land has been logged via a non-conversion permit, they would not approve development for an amount of time that incentivizes the pursuit of a Class 4 permit with the state.

He suggested 10-12 years.

The county could consistently uphold the six-year development moratorium on Class 3 permits and not offer the opportunity to lift it, said Amanda Bullis, WEAN engagement director, in an email. By not doing so, she said, the county is complicit in the failure of landowners to conduct environmental impact assessments which could be harmful to public health and safety.

The clearing and grading permit process, which allows a lift of the moratorium, is housed under public works, while the rest of land-use permitting is housed under the planning department. On the application Form N, a small checkbox says “Request to lift a Forest Practices Moratorium.”

According to Bullis, this indicates the request is made often enough to be included on the master application, and that the county is willing to consider it.

“The county couldn’t tell people what to do on their forest lands,” she said, “but they could pass a law that would incentivize people to file under the right permit to start with.”

At the state level, Erickson said he is hopeful. Dave Upthegrove, the incoming commissioner of public lands, has stated that he will stop logging forests that retain legacies of the natural and old-growth forests once dominating the Pacific Northwest.

“I think there’s a real opportunity here for the first time in a very long time to maybe get some substantive change in the forest practices act about some of these problems,” he said.