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Oregon fined $1.2 M for failing to address coastal pollution

Oregonian article
by Kelly House
published March 11, 2016

Oregon’s failure to confront coastal pollution from logging, agriculture and other sources has cost the state $1.2 million in federal grant money.

Federal regulators said Friday they will take the money from a roughly $4 million pot dedicated to addressing coastal pollution in Oregon because of what they consider an inadequate plan to control runoff that pollutes coastal waterways.

Instead, they’ll give the money to other states.

The decision makes Oregon the first state to face penalties for failing to meet federal standards set in 1990.

Coastal communities will feel the hit in the form of disappearing grant dollars and staff resources for dredging projects, wetland restoration, stormwater management and other efforts. The state Department of Environmental Quality will lose money for water quality improvement projects.

Regulators from the National Oceanic and Atmospheric Administration and the U.S. Environmental Protection Agency for years have warned Oregon officials they were violating terms of the Coastal Nonpoint Pollution Program. Last year, they threatened sanctions if the state did not fix the problem.

All U.S. coastal states are subject to the 1990 law, which requires them to control water pollution from sources not covered in the Clean Water Act.

Federal regulators have said previously that Oregon needed to better protect streams from logging, control runoff from old forest roads and landslide-prone areas, and guard streams against aerial pesticide spraying.

In the year since, the Oregon Board of Forestry has begun crafting new rules to address logging runoff, but a 2015 bill to address aerial spraying never reached the Senate floor.

Richard Whitman, Gov. Kate Brown’s natural resources adviser, told federal regulators in a February letter that the state plans to address remaining concerns through voluntary measures.

On Wednesday, administrators from both federal agencies told Whitman those measures are “not sufficiently definite or advanced” to avoid sanctions.

“I don’t think anybody’s happy we got to this point,” said Michael Milstein, a spokesman for the National Oceanic and Atmospheric Administration.

The funding cuts will repeat yearly until Oregon submits a strong enough plan, an EPA official said.

When the coastal pollution program took effect, states had until 1996 to get in compliance. Oregon is one of 10 states whose plans have yet to gain final approval, but none of the others has been penalized.

Federal officials delayed final inspection of Oregon’s plan for nearly two decades before an environmental group sued to force them to either approve or reject the plan.

Nina Bell, whose Northwest Environmental Advocates filed the lawsuit, said Friday the sanctions send a long-overdue signal to Oregon legislators who have capitalized on the state’s green image while clinging to environmentally regressive policies.

“Oregon has a reputation for protecting the environment that was built on fiction,” Bell said. Now, “it comes down to this: Is the DEQ going to continue to send these letters saying everything we’re doing is good enough, or are they really going to dig in and do something?”

At publication time, representatives from Brown’s office had not returned calls for comment.

— Kelly House

khouse@oregonian.com
503-221-8178
@Kelly_M_House

Click here to read the press release by Northwest Environmental Advocates

Willamette Media Article: Forest for the trees -CRISIS in Oregon’s privately-owned timberlands

Forest for the trees -CRISIS in Oregon’s privately-owned timberlands

 

Economists, foresters and environmentalists concerned about toxic drinking water, habitat degradation and economic equity say Oregon’s system allows large private corporations to use industrial agriculture methods that deforest thousands of acres of Oregon forests, contaminate water and accelerate climate change.

They say these calamaties are the result of a law, the Oregon Forest Practices Act (OFPA) and the vigorous lobbying of international timber corporations in the Oregon legislature that keeps the law toothless and the Oregon Department of Forestry complicit.

The Oregon Department of Forestry disagrees.

“To be blunt, the Oregon Forest Practices Act is an embarrassment,” says John Talberth, founder and senior economist for the Center for Sustainable Economy, an environmental economics think tank based in Lake Oswego. “For a state that bills itself among the greenest and most innovative in the country, the OFPA is a reminder of just how bad things can get when decision makers turn their backs on a problem and let corporate greed run its course. The OFPA is one of the weakest forest practices statutes in the nation.”

Who are Oregon’s corporate forest landowners?

Privately owned forests in Oregon represent 10.7 million acres, or 35% of Oregon’s forestland. Companies that harvest more than 100 million board feet/year include Weyerhaeuser, Plum Creek, Stimson Lumber, Hancock Natural Resources Group, Campbell Global and Roseburg Forest Products.

Other entities, including the state and the federal government (and many small forest owners) own and manage the balance of Oregon forests.  “Large industrial forestland owners are clearly the worst,” Talberth says. “Their goals are not to manage forests in a way beneficial to Oregonians, but to manage forests as an asset on paper that can be liquidated and then exported overseas in a heartbeat to benefit the bottom line of their international investors.”

What are The Oregon Forest Practices Act and the Oregon Department of Forestry?

The OFPA was first enacted in 1971 and has been revised multiple times. It sets the standards for all commercial logging activities.

The ODF manages the state’s “working forests” with OFPA guidelines; its Board is responsible for interpreting the OFPA and setting rules for forest practices.

Deforestation-Oregon-Style-9-14-411Environmental damage from OFPA

Behind the Emerald Curtain, a documentary released by Pacific Rivers, an Oregon-based watershed advocacy organization, critiques the OFPA for allowing industrial practices on corporate forestlands, including extensive clear-cutting and the spraying of toxic herbicides and pesticides.

These practices, it says, result in increased temperature and sediment pollution in waterways and deadly conditions for “indicator” species that require healthy forests to survive, such as salmon and steelhead.

In January 2015, in response to a lawsuit filed by Northwest Environmental Advocates (NWA) the Environmental Protection Agency and the National Oceanic and Atmospheric Administration determined that Oregon’s logging practices created dangerous levels of water pollution and harmed fish. The state failed, they said, to protect small and medium-sized streams, to control pollution from some logging roads, to protect streams from landslides and fish from pesticides applied for logging.

“The blame for this shameful disapproval can be squarely laid at the doorstep of Oregon’s forest practices law, the agencies and boards that do nothing to improve forest practices, and the logging industry that maintains a tight political grip on this state,” said Nina Bell, Executive Director of NWA at the time.

In The Liquidation of Forests in McKenzie’s Quartz Creek (2015) the Center for Sustainable Economy assessed damage done by Rosboro Lumber Company in the 27,000-acre watershed that provides drinking water for Eugene. It pointed out instances where OFPA’s requirements were significantly less robust than those used for federal forests, resulting in “long-term deforestation and… degradation.”

The OFPA, for example, requires “no cut” buffers of trees along only the largest perennial streams and some that provide domestic water – and then only 20’-25’ in width. On national forest lands, in contrast, fish-bearing streams are now given 300’ – 350’ of protection either side of the bank, and non-fish bearing streams receive buffers of 110’ – 170’.

The Quartz Creek assessment also noted OFPA contains no limit on the amount of land permitted to be in “recent clear-cut condition” at any time, and no older forest retention standards. These practices are significantly more lax than rules that guide federal forests.  “Our analysis reveals a pattern of forest liquidation that will be reflected in a watershed largely stripped of forest cover for decades to come,” the assessment stated.

 Serious human impacts

The effects of clear cutting are felt by human beings, too, according to Ernie Niemi, managing director and senior economist at Natural Resource Economics, of Eugene. “When you cut down trees, most of the heat they retained goes into the atmosphere… Anyone who cares about climate change needs to address the issue of what I call ‘green coal,’ or the private timber industry in Oregon.”

Economists like Niemi say OFPA forces Oregon communities to pay for the landslides, toxic drinking water and illnesses that result from logging. “As of now, in Oregon, timber corporations see the benefits – and impost the costs on the rest of us,” Niemi says. “As unrestricted logging pushes more carbon dioxide into the air we will see substantially more heat-related illnesses and heat-related deaths from the climate change it’s causing.”

The OFPA contains no limits on the rate of clear cutting; between 2000 and 2015, western Oregon has lost nearly 522,000 acres of forest cover. John Talberth and Erik Fernandez, in Deforestation, Oregon Style, say forest loss to clear-cutting has exceeded forest regrowth by 45% between 2000 and 2013.

 

trees1

How can the Department of Forestry allow these harms?

Small foresters such as Michael Donnelly, former Vice President of the Oregon Natural Resource Council (now Oregon Wild) and co-founder of the Friends of Opal Creek, and Peter Hayes of Hyla Woods, a forestry company devoted to stewardship, say “tree plantation” processes are protected and perpetuated by Oregon’s Department of Forestry because of its submission to the OPFA. Simultaneously, they criticize heavy lobbying by the corporate logging industry in the Oregon legislature for making sure OFPA rules remain ineffectual.

Arguing that mainstream forestry practices “subsidize profits by degrading the public good,” Hayes, who served on the State Board of Forestry for three years, says the industrial ag model “requires political corruption to maintain it. It’s the power of money in our political system, the power of the Department of Forestry and other state agencies.”

Donnelly agrees. “Timber has dominated our politics in Oregon for so long; there are properties that own millions of dollars of timber and pay just thousands of dollars in taxes every year,” he says. “And what small amount of taxes these corporations do pay goes right into publicity like the Oregon Forest Resources Institute that misleads the public.”

In 1999, Oregon’s legislature exempted the largest, industrial forestland owners from paying the timber harvest privilege tax – while keeping the tax intact for small forestland owners.

“The legislature’s failure to act,” Talberth says, “has allowed drinking water supplies to be contaminated with sediments and chemicals, has accelerated the extinction of wildlife and fish species that need real forests and not tree plantations to survive, has resulted in tens of thousands of landslides that damage roads and property… and has locked rural Oregon communities into a pattern of poverty characteristic of economies dependent on industrial resource extraction wherever it occurs in the world.”

Industrial ag practices in Oregon -Photos from the Center for Sustanable Economy

State agencies refute these contentions

Both the Department of Forestry and the Oregon Forest Resources Institute, deny the critics.

“The OFPA,” says Peter Daugherty, Private Forests Division Chief of the ODF, “is vital in assuring the public that private lands are managed responsibly, and in providing a stable regulatory environment.” The Oregon Legislature, he says, “states that Oregon’s public policy is to encourage economically efficient forest practices to ensure sustainable wood production as the leading use on private forestlands.”

Daugherty maintains that the amount of wood harvested each year is “about equal to the annual growth” on private forestlands, and notes that the OFPA “requires prompt reforestation of harvested areas.”

“While not perfect,” he says, “Oregon’s forestry laws are continually updated to reflect current science and Oregonian values.”

Oregon Forest Resources Institute Director of Forestry Mike Cloughesy concurs, maintaining, “The OFPA is a robust set of laws that protect our communities, waters and natural systems.” Inka Bajandas, Public Outreach Manager for OFRI adds that Oregon’s forest practice laws “are among the strongest in the nation… Perhaps the strongest in the nation.”

 

Steps to more responsible forestry

Hayes feels all forest owners should be responsible to the public trust, “which all of us share, and none of us own.” Among the suggestions critics offer:

• Close tax loopholes that increase emissions from industrial forestlands

• Tax ecologically harmful practices at the highest rate

•End the property tax break (90%) now provided to any land managed for timber no matter the condition of that land, including open clear-cuts and logging roads

• Protect waterways with adequate no-cut buffers

• Incentivize responsible practices. Paul Vanderford, Board Member and Finance Committee Chair of the Build Local Alliance, a Portland partnership of forest owners, distributors and developers, says, “Markets can reward stewardship in the same way a family that buys organic apples is rewarding orchards that use fewer chemicals in their production.”

• Reinstate the State forester’s ability to evaluate significant logging operations

• Allow the state Department of Environmental Quality to approve logging operations that affect water quality

In the end, Hayes says, any and all changes will be the result of public will.

“In Oregon we have the option to have forestry that will serve everyone better,” Hayes says. “We at Hyla Woods want that change badly enough to make it happen with us. I would ask: do you, fellow Oregonians? Because foresters can’t do it on their own.”

Three appointments to Board of Forestry Confirmed by Senate

The Oregon Senate recently confirmed three current members of the Oregon Board of Forestry for a second four-year term.  These three members are:
  • Cindy Deacon Williams, a consulting fisheries biologist.
  • Nils Christoffersen, executive director of Wallowa Resources, which seeks balanced rural development.
  •  Tom Insko, President of Eastern Oregon University and former region manager for Boise Cascade.

Take Action: Send a letter to Governor Brown through Oregon Wild and ask for Oregon’s Forest Practices to be reformed

Oregon Wild, a member of the Oregon Stream Protection Coalition, has drafted a petition calling for the reform of Oregon’s forest practices.

The following is a blurb from Oregon Wild’s request for the public to take action:

It’s time to reform Oregon’s harmful logging practices!

For too long, Oregonians have tolerated shameful logging practices in our forests:  clearcuts that are too big and too close together; stream habitat made too hot and muddy for fish; logging-induced landslides; water supplies rendered too dirty for communities to drink without expensive treatment; and people poisoned by aerial spraying of dangerous chemicals. Logging corporations have undue  influence on the regulatory process in Oregon, leaving state agencies incapable of enacting the science-based policy changes required to protect human safety and the public’s natural resources.

Something has to change.

Sign the letter to Governor Kate Brown.

Oregon Department of Forestry’s Summary and Q & A Regarding New Riparian Rule Proposal

The Oregon Department of Forestry has posted the following information about the Riparian Rule Analysis Decision on its website.

The contacts at the bottom allow for you to ask questions or provide comments:

November 5, 2015 Board of Forestry Streamside Buffer (Riparian) Rule Analysis Decision

Summary

  • The Oregon Board of Forestry ruled to increase streamside buffers on many streams in western Oregon.
    • The decision will apply to streams that are:
      •  West of the crest of the Cascades but not in the Siskiyou region; oregon riparian rule graphicand
      •  Classified as being a small or medium fish-bearing stream by the Oregon Department of Forestry (ODF); and
      •  Determined to support salmon, steelhead or bull trout.
    •  This decision will increase buffer widths on applicable streams by 10 feet and more than doubled the amount of trees to be left uncut.
    • The decision included options to provide economic relief for smaller parcels and to provide an alternative prescription for streams that run in an east-west direction.
    •  Rules must still be written on this decision and may take over a year to be formalized. This process will allow public review and input.
    •  For all other streams, the current rules will continue to apply.
    • Questions & Answers
    •  Why did the Board make this decision?  This decision was based on ODF monitoring results that showed rules falling short of the protecting cold water (PCW) standard, a Department of Environmental Quality (DEQ) temperature requirement. This standard requires that stream temperature not rise more than 0.5˚F Fahrenheit due to activities such as logging.
    •  How did this decision occur?  Stream temperature monitoring results have been presented to the Board since 2009. In 2012, the Board considered the need for new rules. Since that time the Board has heard testimony from ODF staff, scientists, stakeholders, and other state and national agencies that influenced its decision.
    •  Does this decision apply immediately?  No. Rules must still be written, likely become effective in 2017.
    •  Will streams near me be affected?  Streams that meet all of the following conditions will be affected: (1) located west of the crest of the Cascade Mountains (excluding the Siskiyou region); (2) classified by ODF as being fish-bearing and small or medium in size; and (3) determined to support salmon, steelhead or bull trout. ODF will make maps available that will help you to see if a specific stream might meet these criteria. How these determinations are to be made will be decided as part of the rulemaking process.
    •  Why was the Siskiyou region excluded?  This decision was based on scientific data collected in regions outside of the Siskiyou. The Board determined it inappropriate to apply the same protection measures given the differences in vegetation and stream characteristics in this region.
    •  How will economic impacts be included in this rulemaking process?  Consideration of economic impacts is a required part of the rule making process. ODF is currently working on an economic impact analysis.
    • What if the new rule will affect a large part of my property?  The Board decision has sought to provide relief for landowners with small lots next to such streams.
    • How can I provide input on future rulemaking?  The public may provide comments at public hearings on draft rules. These hearing are expected to occur later next year. An advisory committee will also be appointed that includes members from the public likely to be affected by the rule. Additionally, written or emailed comments can be submitted to ODF at any time.
    • Questions or comments?
    •  Email: forestryinformation@oregon.gov, subject “Stream Rules”
    • Online: http://www.oregon.gov/ODF/AboutODF/Pages/Comment.aspx
    • Mail: Oregon Department of Forestry, 2600 State Street, Salem, Oregon 97310. Attn: “Stream Rules”

Wider stream buffers sought for southwest Oregon

New rules calling for wider stream buffers in Western Oregon exempted the Siskiyou Region

By Mark Freeman
Mail Tribune
January 25, 2016

Read the article at the Mail Tribune

Advocates for wild fish and clean water want the state’s top environmental managers to apply new Oregon Department of Forestry rules that expand streamside riparian protection rules on Western Oregon’s private and commercial forestlands to southwest Oregon.

Forrest English, program director for Ashland-based Rogue Riverkeeper, said Gov. Kate Brown or the state Environmental Quality Commission should step in and enact wider no-cut buffers to shade fish-bearing streams and provide other benefits for wild salmon and other inhabitants.

English said the Siskiyou Mountains region was improperly left off those new buffers that will be applied to the rest of Western Oregon once the rules to put the board’s November policy vote in action are written.

Most fish-bearing streams will see the no-cut boundary extended from 20 feet to as much as 80 feet on each side on private and commercial forestland regulated by ODF. English said data provided to the board show that extending buffers to 120 feet will ensure streams meet water-quality standards.

The EQC, which sets policy for the state Department of Environmental Quality, should do so because it’s on the hook for ensuring Oregon streams meet Clean Water Act standards, which English believes can’t be ensured without those changes.

“The question is, are the EQC and the governor going to correct them on those defects, or is someone else going to have to do it for them?” English told the Mail Tribune.

English said his group has not yet decided whether it will sue ODF should those changes not come about.

Richard Whitman, Brown’s natural resources policy director, said there is a process by which the EQC could put pressure on the Board of Forestry to change the rules, and the EQC could strike out on its own if it believes it to be necessary.

However, the EQC would not take a stance until the actual rulemaking is complete, and that might not be done until the end of this year, Whitman said.

Marganne Allen, field-support manager for state forestry’s Private Forest Division, said the seven-member citizens board that sets state forestry policy “is not considering revisiting its existing decision.”

Allen said the board relied on specific data collected from Northwest Oregon, coastal areas and the Willamette Valley to adopt its rules. It also exempted the Siskiyou Region from rulemaking because the board believed it was incorrect to extrapolate data from other state regions with different environmental realities onto southwest Oregon.

ODF was specifically looking for data from controlled experiments that documented changes in streamside vegetation and changes in water temperatures, Allen said.

“There simply wasn’t anything available in the Siskiyou Region,” Allen said.

Data about stream temperatures weren’t enough, nor was the DEQ’s so-called “shade-a-lator” computer model used to predict changes in stream temperatures with riparian growth used on projects in the Rogue River Basin, Allen said.

“We wanted to bring to the board actual studies, not modeling information,” she said.

The new rules for most of Western Oregon call for 60-foot-wide buffers on both sides of small fish-bearing streams and 80 feet on both sides of medium fish-bearing streams.

The decision means the state Forest Practices Act will be amended to reflect those changes. It does not impact streams on public lands under different buffer restrictions

The Siskiyou Region is defined as running between the Cascade and Coast range crests, the California border to the south and the Rogue-Umpqua Divide to the north.

2016 Board of Forestry Meeting Dates

 

January 6*

Meeting

State Forester’s Headquarters, Salem

March 9*

Meeting

State Forester’s Headquarters, Salem

April 27

Meeting

Tillamook Forest Center

April 28

Field Tour

Co-host Tillamook Forest Heritage

June 8*

Meeting

State Forester’s Headquarters, Salem

July 20

Meeting

State Forester’s Headquarters, Salem

September 7*

Meeting

State Forester’s Headquarters, Salem

October 12

Workshop

Annual Planning Workshop, West Salem

November 2**

Meeting

Ashland

November 3

Tour

Cohesive Wildfire Strategy, Ashland

 

*Required by ORS 526.016

**Potential joint meeting with EQC

Speaking up for the Salmon: Portland Tribune Article

by Paul Koberstein
December 15, 2015
Click here to link to the article in the Tribune

Forestry board widens no-cutting zone along streams, but critics say it wasn’t enough

COURTESY: FRANCES EATHERINGTON  - This land owned by Weyerhaeuser west of Roseburg shows a typical riparian zone protected from logging, in a fish-bearing tributary of the Coos River.

For salmon that live in the mountains of Western Oregon, the Oregon Board of Forestry recently delivered what seemed like good news — expanding the no-timber-cutting zone along rivers.

In the most significant change in Oregon’s forest practices regulations in two decades, the forestry board voted on Nov. 5 to widen the buffer zone along rivers by 10 feet, which should double the number of trees left uncut.

But leaders of Oregon environmental groups say the board’s decision falls far short.

“Oregon’s salmon and steelhead need more protection,” says Mary Scurlock, coordinator of the Oregon Stream Protection Coalition comprising 23 conservation and fishing groups.

Biologists have long known that logging clear-cuts harm salmon habitat, and that overly aggressive logging practices have been behind the decimation of many Northwest salmon runs.

COURTESY OF OREGON STREAM PROTECTION COALITION - This aerial shows the Smith River along the Oregon Coast.

 In 1997, the National Marine Fisheries Service listed Oregon’s coastal coho salmon as threatened, due in large part to logging on private lands. Logging right next to rivers is especially harmful to fish, which is why regulators have required loggers to preserve narrow bands of uncut trees along streams, often known as riparian zones.

The main benefit of riparian trees is their shade, which has a cooling effect on water temperatures. Under prior Oregon forestry rules, the no-logging riparian zones had to be from 20 to 70 feet wide, depending on the size of the stream and whether it has fish or not.

But streams in the Coast Range have been found to consistently violate Clean Water Act standards for temperature, and Oregon’s Forest Practices Act requires that the state’s logging rules meet those standards. The Oregon Department of Forestry’s own research shows that buffers need to be about 100 feet wide to keep the water cool enough to be healthy for salmon and meet the standards.

“The science clearly shows more than 100 feet is needed to be really confident that we are complying with the Clean Water Act,” Scurlock says.

Bob Van Dyk, of the Wild Salmon Center, says Oregon’s forest rules to protect salmon lag far behind its neighbor in Washington state. “It’s time for us to catch up to the science-based rules Washington state passed 15 years ago,” Van Dyk says.

Mike Cloughesy, the Oregon Forest Resources Institute director of forestry, says logging causes only a “slight” increase in river temperatures. He says the benefit of having wider buffers than those prescribed by the Board of Forestry would be only minor, but the cost to logging companies would be “in the millions.”

The forestry board’s rules apply only to small or medium fish-bearing streams that support salmon, steelhead or bull trout, and not the smaller headland tributaries that feed into these streams. The rules apply only to privately owned timberlands of Western Oregon except for the Siskiyou region of Southwest Oregon, which are dealt with under a separate rule.

Besides their cooling effects, riparian buffers improve river habitat by reducing runoff from pollutants, supplying woody debris that salmon use for habitat structure, and retaining flood flows and sediment.

Salmon thrive best in temperatures ranging from 53 to 64 degrees Fahrenheit, but in many Oregon streams the temperatures are much warmer.

Coho salmon, the salmon species most commonly found in coastal streams, prefer to spawn when the water temperature is below 61 degrees. Their eggs suffer at temperatures above 70 degrees. Temperatures above 78 degrees are lethal. By definition, streams that are warmer than these benchmarks violate the state’s water temperature standards.

The Oregon Department of Environmental Quality reports that 7,732 miles of river in the Coast Range fail to meet the temperature standard. The habitat in these streams is not ideal for salmon when they spawn, migrate or just hang out.

It’s not clear how many of these river miles will be brought into compliance under the new standards. Rules enforcing this decision have yet to be written, and will be subject to public review.

Testimony to the Environmental Quality Commission regarding Oregon Board of Forestry Stream Buffer Proposal

Click here to download the full testimony as a PDF, including charts 

BEFORE THE ENVIRONMENTAL QUALITY COMMISSION

Statement of Mary Scurlock during General Public Forum

10 December 2015

I represent the Oregon Stream Protection Coalition’s 24 fishing industry and conservation member groups[1] united in support of stronger, science-based riparian protection for streams on Oregon’s 10.6 million acres of private forestland.   We share the common goal of a stronger regulatory baseline to ensure the long-term health of freshwater ecosystems and the many economic benefits they support, including but not limited to sport and commercial fisheries and a sustainable timber industry.

My purpose in testifying today is to summarize our perspective on the recent decision by the Board of Forestry to increase stream buffers on some western Oregon streams.  We do not believe the Board took sufficient steps to meet their legal obligations, and are asking the Commission to closely examine the proposed protection and to consider petitioning the Board to ensure that best management practices for water pollution from private forest practices are truly adequate to meet water quality standards.

As you know, the anti-degradation component of the stream temperature standard limits warming from individual land use activities to .3 degrees C or less.  This is known as the Protecting Coldwater Criterion, or the “PCW.” Four years ago, in January of 2012, the Board of Forestry initiated a rule-making process in on the basis of the “Rip Stream” study (Groom et. al. 2011) that found logging compliant with current stream protection rules does not reliably meet the prevent stream-warming of .3 degrees or more due to excessive removal of riparian shade small and medium fish-bearing streams. On November 5, 2015 the Board made a 4:3 decision initiating formal rulemaking on a specific proposal that is expected to result in a final rule within a year.

There are three points I’d like to make today.

  1. The EQC has a duty to independently evaluate the adequacy of the Board’s rules, including the Board’s recent proposal.

The OSPC is deeply concerned by the Board’s decision, and we think you should be too.  We think the science is clear that the proposed stream rules are inadequate to meet the PCW.  I’m asking you to take a hard look the proposal in light of the law and the best available science and make your own determination about the adequacy of the Board’s rule directive.

 Although EQC shares authority with the Board of Forestry regarding water quality attainment on state and private forestlands, the EQC is still the primary enforcer of water quality standards under ORS 527.724.   As you know, good faith compliance by landowners with the Board of Forestry’s rules are generally considered adequate to meet water quality standards under ORS 527.770.   But the EQC need not accept the Board’s proposed rules as adequate, and has reserved the right to petition the Board for better rules under ORS 527.765 and to enforce directly for violations of Total Maximum Daily Loads where water quality standards are not attained.

If the EQC does not find the Board’s proposal adequate, we urge you to avail yourselves of the remedies available to you, including but not limited to petitioning to the Board for rules that are adequate to meet the Protecting Coldwater Criterion.

  1. The proposed buffers will not be effective to meet the PCW, yet buffers that would attain full compliance are clearly practicable

We understand that the Board of Forestry has some discretion about the level of certainty of compliance that it deems acceptable for the management practices it selects to meet water quality standards.  However, it is our understanding that the Board is legally obligated to implement management practices that are actually effective to meet these standards to the maximum or highest degree attainable unless it can be demonstrated that meeting the standards is not practicable for the regulated community as a whole. [2]

The first problem is that the Board has selected practices that, according to the Department’s own analysis, will not be effective to prevent the prohibited stream warming with any reasonable likelihood.  As illustrated by the attached graphs generated by ODF’s Jeremy Groom, even buffers of 90 feet are predicted to limit warming to .3 degrees or less on only about 50% of the sites to which it is applied — yet Board has selected only 60 and 80 foot buffers on small and medium streams, respectively.  These buffers, even if not harvested at all, have a very low chance of actually meeting the standard and would simply perform somewhat better than the status quo.  Further, the Board’s proposal apparently deems these buffers adequate even when harvested down to retention standards for which there is virtually no analytical basis.

The second problem is that there is no justification on the basis of practicability at the sector level for choosing the inadequate 60 and 80 foot buffers.  The footprint of a 90- foot buffer on both small and medium streams is only 15,200 acres or .4% of private industrial land in western Oregon.  On an annual basis this translates into 300 acres per year with 50 year rotations.  For smaller private non-industrial owners this would be 15,800 acres and .6% of Private Nonindustrial Land, or about 230 acres/year using a 70 year rotation.

  1. The Board’s decision does not extend additional adequate protection to all streams to which the Protecting Coldwater Criterion applies, i.e. those upstream of salmon, steelhead and bull trout (SSBT) reaches and streams in the Siskiyou, Blue Mountain and Eastern Cascade Regions 
  • Upstream Extent. The PCW expressly requires some reaches upstream of SSBT reaches to be protected from warming, yet the Board’s action does not effectively apply the new buffers upstream of these reaches.  The Protecting Coldwater Criterion applies to reaches upstream of salmon, steelhead and bull trout reaches that are “necessary to ensure that downstream temperatures achieve and maintain compliance with the applicable temperature criteria.”  The Board ignored ODF staff analysis showing high variability in heat dissipation downstream, and finding that available evidence shows only half the upstream temperature increase dissipates after 300 meters downstream, which in many cases would result in PCW violations at that distance. On the basis of available information, NMFS scientists called for the new buffers to apply at least 1600 feet upstream of SSBT reaches.  What we got was “to the end of the uni,t” whatever that distance may be.
  • The PCW applies on all Oregon streams. The Board proposes no action to extend new protections to all regions of the state. There is no timeline for addressing the Siskiyou and the two ODF regions in Eastern Orego also excluded despite a large body of evidence (including but not limited to RipStream) indicating that the current rules are not adequate to meet the Protecting Coldwater Criterion in any region of the state.

In conclusion, I urge you to examine the compelling reasons why the Commission should petition the Board of Forestry for rules that will effectively meet the PCW.   In parallel, we further urge you to independently assess the adequacy of current and proposed rules to meet temperature restoration targets (TMDLs) on impaired stream reaches statewide.

Respectfully submitted,
Mary Scurlock, Coordinator, Oregon Stream Protection Coalition

[1]Association of Northwest Steelheaders, Audubon Society of Portland, Cascadia Wildlands , Center for Biological Diversity, Coast Range Association, Defenders of Wildlife, Institute for Fisheries Resources, KS Wild, McKenzie Flyfishers, Native Fish Society, NW Guides and Anglers, Northwest Sportfishing Industry Association, Oregon Wild, Pacific Rivers, , Pacific Coast Federation of Fishermen’s Associations, Rogue Riverkeeper, Sierra Club, The Wetlands Conservancy,,Trout Unlimited, Umpqua Watersheds, Washington Forest Law Center, WaterWatch of Oregon, Wild Earth Guardians, Wild Salmon Center.

[2] See e.g. Adams, J.J. (Oregon Assistant AG).  2005. Legal Relationship Between ORS 527.765 and ORS 527.714 in Deciding Whether to Adopt BMPs under the Oregon Forest Practices Act ; Daugherty, P., 2012. http://www.oregon.gov/odf/BOARD/docs/2012_November/BOF_ATTCH_20121107_03_06.pptx).

 

Guest Opinion: Board of Forestry fails to protect Southern Oregon salmon

In Medford’s Mail Tribune

By Forrest English

Posted Nov. 21, 2015 at 12:01 AM

I was standing on a bridge in town recently, watching salmon below me move upstream. These fish were at the end of a long journey. A journey that started in this very creek years before when they emerged from the gravels, made their way to the ocean and now had fought their way back upstream to spawn and start the cycle anew.

As I stood there dozens of people walked up and asked if I’d seen the fish. Many strangers eventually stood together in awe watching these salmon dart about the pool and thrash their tails building a nest for eggs.

The Oregon Board of Forestry unfortunately, demonstrated no such awe for salmon and our societal obligation to protect habitat that is so critical to the fish and our culture and economy.

In a recent decision intended to increase protection for our streams and salmon from the impacts of logging along streams, the Board missed the mark by a mile. Not only did the Board fail to implement protections that scientists identify would meet legal obligations to protect water quality critical to salmon survival, but they also elected to leave out southwest Oregon (the Siskiyou region) entirely from the limited protections granted to regions north of us.

While there were two votes for stronger protections, the timber industry interests on the board prevailed in weakening the buffers and excluding the Siskiyou region. It’s as if the Board believes that the physics of how streamside trees create habitat, keep our streams cool with shade, and filter pollution do not apply to southwest Oregon.

Scientists have been looking for years at how big streamside buffers would need to be to meet the legal requirements to protect cool water for fish and inform a Board decision to meet them. In addition to the existing body of evidence that these buffers are critical and needed, the Department of Forestry studied the issue in western Oregon with many sites on timberland in the so called RipStream study.

The Department heard from both their own staff, the U.S. Environmental Protection Agency, and independent scientists that the results of the RipStream study showed that the minimum buffer size that would have any real confidence of meeting the legal requirements is at least 100 feet.

The evidence identifies that even if forests may be somewhat drier and sparser in the Siskiyou region that makes up most of the Rogue River watershed, those conditions would make warming of streams even MORE likely by removal of those trees, not less. The Department’s own research in fact showed that streams with a lower density of tree cover were equally or more sensitive to increases in temperature from the removal of additional trees.

The evidence also shows that 80-foot no cut buffers on medium streams, and 60-foot buffers on small streams identified by the Board’s decision in the rest of western Oregon simply does not go far enough, and it certainly doesn’t justify throwing southwest Oregon under the bus by excluding the region entirely from those small steps forward.

Many streams in our area are already suffering from temperatures too high for cold-water fish like salmon. Oregon’s water quality restoration plans highlight temperature problems throughout the Rogue Basin and elsewhere throughout the state. Removing streamside trees and warming headwater streams will likewise warm up waterways that salmon depend on downstream, something the Board’s decision again fails to address.

As if that weren’t enough, a warming climate is already placing additional pressure on our streams. The last two summers have served as a window into what the future may look like, leaving less water in our streams and that quickly becomes very warm. In the face of climate change, we must develop policies that help us build resilient communities and aquatic ecosystems so we will still have access to clean, cold water.

People in the Rogue Valley are very attached to the salmon and clean water that make this a special place to live, locals look forward to fishing, or just watching them move up stream for many generations to come. I wish the Board of Forestry shared that vision.

Forrest English is the program director of Rogue Riverkeeper and works to protect and restore clean water and fish populations in the Rogue Basin.