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OSPC Testimony at the July 23 Board of Foresty Meeting Addressing Riparian Rule Prescriptions

Download the complete testimony

BEFORE THE BOARD OF FORESTRY
Statement of Mary Scurlock, Oregon Stream Protection Coalition
Agenda Item 2: Developing Riparian Rule Prescriptions
23 July 2015

My name is Mary Scurlock, representing the Oregon Stream Protection Coalition’s 24 fishing industry and conservation member groups united in support of stronger, science-based riparian protection on Oregon’s 10.6 million acres of private forestland.

Summary Points

1) The Board’s legal duty is to “insure to the maximum extent practicable” that the Protecting Coldwater Criterion (PCW) is met. This means the Board must adopt measures that provide a high likelihood (i.e. “insure to the maximum extent”) that the PCW will be attained unless attainment is demonstrably infeasible for the regulated community as a whole.

2) The Board’s discretion with regard to how effective management practices must be to meet its duty is more constrained when dealing with a numeric criterion like the PCW that is specifically designed to limit impacts at the site level than it would be with a more generally applicable ambient standard — as has often been the case when interpreting “maximum extent practicable” in other Clean Water Act contexts.

3) The Board is not empowered to decide that the standard does not need to be fully complied with for reasons other than demonstrated impracticability, nor may it decide that some other, less stringent standard is adequate, or that only “least cost” options should be considered.

4) For buffer sizes, there is a strong scientific basis to guide you: a regional literature review narrowing your choice to either no-harvest buffers or variable retention buffers, and a multimillion dollar study that demonstrates the standard is not currently being met and whose data supports a state-of-the-art analysis of the likely effectiveness of riparian prescriptions. That science tells us that 120 feet buffers are necessary to insure achievement of the PCW to the maximum extent — or virtually 100% of the time. A 100 foot buffer gets us there about 80-85% of the time, and 90 feet limits stream warming to the low levels directed by the PCW only about 50% of the time.

5) None of the most effective buffer size alternatives has been demonstrated to be incapable of being implemented, i.e. impracticable.

6) Given the known and substantial risk to public natural resources posed by continued implementation of current rules, there is no rational basis not to apply buffers meeting the PCW to all of western Oregon.

7) Because there is no non-arbitrary way to ensure that Salmon, Steelhead and Bull Trout (SSBT) reaches are protected from prohibited stream warming caused by logging of upstream, “non SSBT” reaches, and because stream warming limitations are also required in many of these reaches by temperature restoration targets (“TMDLs”), enhanced buffers of at least 100 feet should be extended to all fish-bearing streams in western Oregon.

OSPC RECOMMENDATIONS

  • Buffer size: ODF modeling illustrates that at least a 100 foot no cut is needed to provide what could be considered a high certainty that the PCW will be met (“insure to the maximum”) with sufficient frequency to be considered compliant with the criterion: a 100 foot buffer translates into a predicted average warming of .18 degrees, which translates into meeting the PCW about 80 to 85% of the time. (Pers. Comm. J. Groom, ODF, 2 June 2015). Alternatively — in order to get compliance to the “maximum extent” as directed by the OFPA and federal law – the Board could select 120 feet for close to 100% certainty of attaining the PCW.
  • Geographic and Stream extent: Substantially more than 1000 feet above SSBT reaches would be needed to reliably protect downstream reaches from prohibited warming, and at least some tributaries would need protection although tributaries are excluded from all of the Department’s proffered policy packages. We recommend that PCW-sufficient buffers be applied in all of western Oregon for the full extent of the upstream fish-bearing network as well as nonfish tributaries that contribute 20% or more of the streamflow of the receiving fishbearing water.Application of the new rule to SSBT reaches only means the new protections would apply to just slightly more than 11% of the perennial stream network, and 25% of perennial streams governed by the FPA in western Oregon. (EPA analysis, A. Henning and P. Leinenbach, June 3, 2015). Public policy dictates in favor of “all fish” coverage because it will substantially reduce the risk of failing to meet the PCW due to insufficient upstream and tributary protection and with get us furthest down the road toward CZARA and TMDL compliance.
  •  Eastern Oregon: The expanded buffer should include all small and medium fishbearing streams in all ecoregions of Western Oregon with a commitment to implement appropriate commensurate protection from harvest-related stream warming for small and medium fish streams in Eastern Oregon within 12 months.
  •  Nonfish Streams: The Board should initiate a rule change to address water quality needs on non-fish streams statewide within 12 months.

DISCUSSION

●Board Duty and Decision Standard. We are extremely concerned that some members of the Board may fundamentally misunderstand their legal duty and overestimate their discretion to choose alternatives that make minor improvements over the status quo, creating the real possibility that a majority of the Board will not see fit to support the best conservation alternative now on the table, much less the stronger one OSPC believes is needed to meet the Protection Coldwater Criterion (PCW). This perception seems to relate to confusion over the Board’s duty to comply with the standard as well as the apparent belief that the Board is empowered to decide that there is no or limited public benefit to meeting the PCW.

The Board’s duty is not met by measures that simply “reduce” exceedances or increase the likelihood that the PCW will be met over the status quo. “Substantial advancement” of the purpose of the rule is a necessary finding under -714, but is not itself a sufficient standard for the Board’s decision. (At least two proposals we know of have claimed that they will reduce violations/improve attainment of the PCW from the status quo as if that is the standard).

Nor is the Board authorized to second-guess the legal or biological need for PCW attainment because that has already been decided by EQC. Specifically, the Board cannot legally substitute judgment for that of the EQC (the sole promulgator of water quality standards in the state of Oregon) and the US Congress (the anti-degradation policy of the Clean Water Act as memorialized in statute and federal rule). Full compliance with the PCW as already been determined to be necessary for protection of the public’s waters in the appropriate forum (EQC, ratified by EPA). See also ORS 527.714 (enforcement savings clause referring to goal of full compliance with water quality goals).

● The primary information the Board should use in making its decision is the Department’s assessment of the prescriptions’ effectiveness to meet the target standard. The reason we spent millions and waited over a decade to get here is because the RipStream study tested BMP effectiveness to meet the PC, so the public has a clear and reasonable expectation that the Board will make its policy decisions consistent with the study results. The most probative information on the table, and that which should be given the greatest weight, is the ODF predictive model based on RipStream.

The Board should not even be CONSIDERING rule changes that the ODF effectiveness analysis does not demonstrate are adequate to prevent the prohibited stream warming. This means only the 90, 100 and 120 foot no cut, the state FMP should even be on the table at this point UNLESS one of these is really not feasible, which has not been shown. In our considered view, the scope of the Board’s discretion does not include alternatives for which there is no rational basis to find the target water quality criterion actually is met with a reasonably high likelihood.

There is a great deal of information on the table now of highly variable quality that is not directly related to maximizing the effectiveness of management measures to “insure” the standard is met as the law requires. Information that the Board should NOT be distracted by includes: the likelihood of active wood placement, the unquantified putative benefits of active management to control stocking” to meet DFC, ODF’s opinion of the “marginal return” of additional riparian protection, the “fish response” information, the statistical “risk of extrapolation” of RipStream results to ecoregions outside the Coast Range – none of which relate to the effectiveness of measures to meet the PCW. Even the landowner economic impact information is only relevant to exclude an alternative as impracticable if it shows jeopardy to the industry or sector as a whole and to identify the least burdensome alternatives.

Information that has been given relatively less attention than it should have been in the Department’s policy framework most notably includes: 1) the risk of not meeting the PCW posed by a failure to protect both an inadequate portion of upstream reaches but also upstream contributing tributaries; and; 2) the complexities of the implementation burden created by tiering protection to SSBT reaches which could lead to incomplete and/or inefficient application of the new rule.

● All the ODF rule packages fall short on buffer size and stream extent. None of the ODF rule packages outlined in the staff report is sufficient on its face to fulfill the Board’s legal duty to meet the PCW to the maximum extent practicable. Only the no cut in Package 1 — referred to as the “Minimize Temperature Concerns” (90 foot buffers) should even be considered to be in the ballpark, but this package doesn’t really “minimize” temperature concerns or “maximize” attainment of the standard. According to ODF analysis these buffers would still allow violation of the PCW at approximately 50% of sites. Further, the covered stream extent is Salmon, Steelhead and Bull Trout reaches plus an admittedly arbitrary and insufficient 1000 feet the Department’s review of the best available science clearly illustrates that this distance is not adequate to prevent downstream warming in violation of the standard. The literature reviewed by ODF and DEQ illustrates that 1000 is median distances that does not cover more than half the sites and observations at some sites show that recovery may not happen for as much as two miles. Further, ODF does not adequately address risks posed by failure to include adequate upstream extent of SSBT, and does not propose in any of its 3 packages to protect tributaries. In our view, the most logical way for ODF’s riparian rules to account for the wide variability in stream dynamics is to provide additional riparian protection to the full extent of the fish-bearing network.

● The staff report gives almost no attention to the practical implementation difficulties associated with tiering riparian protection to Salmon, Steelhead and Bull Trout (SSBT) reaches. Detailed rules and agency guidance will be needed to ensure credible and consistent implementation. We have previously provided an analysis of implementation concerns, including: 1) the need to create, publish and maintain a new stream classification database; 2) inadequacy of current rules and guidance for determining natural barriers to accurately determine the extent of SSBT distribution; 3) inadequacy of ODF’s current fish survey protocol; 4) inadequacy of ODFW fish distribution maps as the foundation for a new regulatory scheme and the source of consistently reliable basis for determining SSBT distribution; 5) questions about the adequacy of stream classification information sources and whether ODF or ODFW is the appropriate custodian of the SSBT database given concerns about expertise, capacity to conduct rapid updates and funding.

 

Forest Practices Act Can (But Doesn’t) Do The Job: Tim Palmer Guest Opinion in Mail Tribune

Click here to read the oped on the Mail Tribune’s website

Much attention has been given to Oregon’s federal forests and their multiple uses, from the spotted owl controversy of the 1980s, to the hard-earned restoration of salmon spawning habitat, to the O&C debate. Yet 38 percent of Oregon forests are privately owned, and more than half of that belongs to industrial timber companies, with principally one goal in mind.

Understandably, that goal is to maximize profits by logging. But the consequences go far beyond money in the bank. The harvest of trees covering nearly one in five acres of Oregon’s forest has dramatic outcomes on the streams flowing through those lands. That water is owned by the state, which means all of us.

Even more important, industrial logging effects the waterways downstream — rivers and estuaries sustaining sport and commercial fisheries with their related jobs, food and recreation, plus drinking water to homes, towns and cities. A half-century of science has confirmed repeatedly that the steepness of logged slopes, the amount and type of road construction, the closeness of logging to waterfronts and the intensity of both soil and canopy disturbance — including the spraying of pesticides — all govern how well our streams will be protected, or how severely they’ll be degraded.

Those facts justify state government’s role in establishing and enforcing effective standards of harvest under the Oregon Forest Practices Act.

The problem here lies with “effective.” Oregon law allows cutting on slopes of any steepness — straight-up is not too much, except in specific places where public safety is at known risk. The rules permit logging within 20 feet of most waterways. They require no buffer whatsoever for small streams without fish. The rules sanction aerial spraying of herbicides within 60 feet of streams (as if the wind doesn’t blow), and the dousing of toxins directly on small streams (as if their water doesn’t flow into larger streams).

Analysis of the rules of surrounding states — even Idaho — found that all had substantially higher standards than Oregon.

To be fair, some logging companies — including giants as big as Weyerhaeuser — often practice higher levels of performance. Others don’t. Modernized rules would level the playing field for all.

Industrial logging causes streams to warm beyond acceptable standards of temperature — intended not for optimum water quality but simply to curb the grossest loss of habitat needed by native fish. With direct implications to its own program, the State Department of Forestry’s RipStream study found that logging on industrial land caused a greater rise in water temperature than logging elsewhere with wider buffers. We’ve known that better buffers were necessary even before the state’s Independent Multidisciplinary Science Team recommended them to the governor back in 1999 (Recovery of Wild Salmonids). Recent analysis by Ph.D. biologist Christopher Frissell, using the state’s own findings, indicated that no-cut buffers of at least 100 feet are needed to maintain stream temperatures. A hundred feet is not much, given 6 million acres of industrial forest land in Oregon. Uncut forest buffers shade the streams and keep them cool, stabilize banks with roots, and filter out muddy runoff that’s headed toward the water from disturbed areas nearby.

Earlier this year, Oregon became the first state to have its regulatory program disapproved by the federal Environmental Protection Agency and NOAA Fisheries. The shortcomings were failure to protect small coastal streamfronts, to address damage from logging roads, to minimize landslides, and perhaps most important, to control the aerial application of pesticides. All this is timely because the Board of Forestry is reconsidering its rules.

Precautions are needed to prevent the spraying of herbicides on homes and people, such as what sickened 40 residents of Cedar Valley near Gold Beach in 2013. Additional measures, such as those required by Washington State to identify hazard zones, could minimize landslides that routinely damage salmon habitat. I personally saw this in 2012 when the entire “buffer strip” slid into the South Fork Coquille River and its choice chinook spawning beds after massive acreage was clearcut above the buffer. Despite outward appearances — hundreds of feet of shoreline reduced to an oozing quagmire the whole way upslope to the timber sale — the logging complied with regulations, according to state officials.

It’s time for Oregon to join the 21st century.

Action on the Board of Forestry’s agenda won’t solve all the problems of our streams, or of our neighbors being doused and sickened by helicopter-sprayed pesticides, but it’s a step in the right direction to safeguard our fish, wildlife, water and homes.

Tim Palmer of Port Orford is the author of “Field Guide to Oregon Rivers,” “Rivers of America” and other books.

Drought, hot weather put strains on fish, agencies: Statesman Journal Article

by Henry Miller, Statesman Journal
Click here to link to the full article including photos

The article includes a quote from Coalition member Northwest Steelheaders:

Groups such as the Northwest Steelheaders are taking a proactive approach to long-term solutions for dealing with problems such as warming water, said Rees, of the Association of Northwest Steelheaders.

“Part of our initiative to address that is working with the Board of Forestry on improving riparian areas on the private forest lands,” he said. “And we’re certainly working with state and federal (agencies) trying to get some additional designations on federal lands in the North Coast area.

“It’s all about building resilience, and the only way to do that is to improve freshwater habitat.”

Full Text of Article:

The drought and persistent hot weather across the West have some anglers putting their gear away and governments from California to British Columbia closing or restricting fishing in an effort to protect stressed fish.

“I just had a guy from the Eugene chapter who said they just put the boat away. So they’re kind of folding it up,” said Bob Rees, the executive director of the Association of Northwest Steelheaders. “Typically they just enjoy being out on the water in June and July.

“They’re just choosing conservation first and looking forward to ocean and estuary fishing down on the coast.”

And the Oregon Council of Trout Unlimited has notified its members that if the water is above a certain temperature, they should not be fishing, said Tom Wolf, the executive director.

“Wild-fish people, we tend to be sensitive to that,” Wolf said. “I’ve seen a lot of blogs out there for anglers who are really concerned and they’re already voluntarily not fishing when the water’s too warm. And they’re asking for the agencies to do something, too.”

The situation is dire in some areas.

 Chinook salmon and even sturgeon have been dying on the Willamette River below the falls at Oregon City as temperatures have climbed to 80 degrees.

And warmer temperatures were blamed for a bacterial outbreak that killed about 45 sockeye salmon at the mouth of the Deschutes the first week of July.

Oregon, as with Washington, has released some salmon early from state hatcheries and has closed or restricted fishing on some rivers in the face of falling flows and rising water temperatures.

Sections of the Umpqua River in southwest Oregon where tributaries enter the river creating what are known as thermal refuges are off-limits to fishing for salmon and steelhead.

And low, warm water in northeastern Oregon has closed the Chinook season on the Grande Ronde River, with the Imnaha and Wallowa rivers to follow July 13.

Two wild-fish conservation organizations, the Native Fish Society and Trout Unlimited, say the Oregon Department of Fish and Wildlife needs a comprehensive drought policy to protect fish, and that policy should include trigger temperatures for shutting down fishing.

Trout Unlimited submitted a letter to that effect Thursday, July 9, to Fish and Wildlife.

“It should be, and it should be part of the statewide response to this drought,” said Bill Bakke, the founder and director of science and conservation for the Native Fish Society.

“Canada made that decision,” he said about a July 4 shutdown of fishing on southern Vancouver Island and adjacent islands off southern British Columbia. “We’re seeing things like what’s happening up in Canada where this whole low-water drought problem up there, they’re taking action on that.”

Bruce McIntosh, the deputy chief of fisheries for the Oregon Department of Fish and Wildlife, said the agency needs flexibility to deal with changing circumstances.

“We don’t have a formal policy. And I don’t imagine adopting one,” he said. “We’re a little more organic about it.

“We do have a suite of strategies and actions in place to deal with drought, and it’s everything from conserving water to closing fisheries.”

He cited rule changes such as the closure of sections of the Umpqua to reduce stress on salmon as an example.

“We have seen some issues that have raised conservation concerns,” McIntosh said. “We are sort of monitoring those things, and where there is a conservation concern we will take action.”

Among the other strategies the department is considering is an approach similar to what Montana has in place, a 2 p.m. to midnight fishing prohibition for some of its iconic trout rivers such as the Lower Madison and Big Hole.

“So everything’s on the table,” McIntosh said. “We’re going to take all the actions that we need to or can to protect these fish. That’s everything from pushing them out of our hatcheries to closing fisheries and, frankly, opening fisheries where lakes are going to go dry and those kind of things.”

And there is another looming threat for salmon, steelhead and other anadromous fish, he added.

“It’s unfortunate right now that we’re also in an El Nino period where not only are freshwater conditions a challenge, but the marine environment looks like it’s also going to be a challenge for the next year or so,” McIntosh said about phenomenon in which warm ocean currents push into the West Coast.

Compounding the problem for fish in the Willamette River drainage, the drought has left valley reservoirs that were drawn down for the primary mission of flood control in anticipation of winter and spring rains and melting snowpack are well below normal.

“That’s the fundamental problem for us. Our Willamette Valley reservoirs are almost entirely rain-filled, and we can’t measure the rain until it’s on the ground,” said Scott Clemans, a public affairs specialist with the U.S. Army Corps of Engineers Portland District. “And we can’t predict how much rain we’re going to get until it’s almost halfway across the Pacific and coming our way.

“And that’s why we had such a ghastly time trying to predict what our reservoir elevations were going to be this spring because until it rained, we really couldn’t tell you. And, well, it turned out it just didn’t rain, period.”

Clemans said one calculation was that for the reservoirs to be where they should be at this time of year, it would have taken 25 more inches of rain than the state received.

The good news is that even with the current situation, the network of dams the corps operates should be able to fulfill its water mandates for fish, municipal uses and agriculture, he said.

Groups such as the Northwest Steelheaders are taking a proactive approach to long-term solutions for dealing with problems such as warming water, said Rees, of the Association of Northwest Steelheaders.

“Part of our initiative to address that is working with the Board of Forestry on improving riparian areas on the private forest lands,” he said. “And we’re certainly working with state and federal (agencies) trying to get some additional designations on federal lands in the North Coast area.

“It’s all about building resilience, and the only way to do that is to improve freshwater habitat.”

The 800-pound gorilla in the room is whether with global climate change the erratic gyrations in annual weather patterns are the new normal.

“The problem that we really face is that almost all of these studies do agree on one thing, and that is during our spring refill season, the chance of flooding is going to be more wildly variable than it has been in the past,” Clemans said. “In other words, there may be many more years like this year when we see little rain and snow, and then there will be many years when we see a lot more rain, probably not as much snow.”

“I think you can see in the governor’s drought proclamation that most of us view this as Mother Nature’s warning shot to Oregon,” McIntosh added. “And it may not so be the new norm, but we’re more likely to see the extremes as the climate transitions.

“And we have to get out in front of these things and how we can help the species that we manage through that transition.”

hemiller@StatesmanJournal.com, (503) 399-6725 or follow on Twitter @henrymillersj and at Facebook.com/hmillersj

Materials for upcoming July 23 Board of Forestry Meeting

The following materials were provided by the Department of Forestry in anticipation of the upcoming July 23 Board of Forestry Meeting:

Staff Report with overview of materials relevant to July 23 meeting  with 3 attachments (each with individual link below):

Attachment 1: Decision Matrix

Attachment 2: Riparian Rule Analysis: Additional analyses of riparian prescriptions and considerations for Board decisions

Attachment 3: Summary of Riparian Rules for Neighboring States 

Testimony Before the Oregon State Legislature Senate Committee on Environment and Natural Resources on the Impacts of Forest Harvest on Fish and Water, with an Emphasis on Nonfederal Lands in Oregon.

Click here to read the full testimony 

BEFORE THE OREGON STATE LEGISLATURE
SENATE COMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES
Informational Hearing on Forestry, Fish and Water
Statement of Mary Scurlock
Scurlock & Associates
1 July 2015

My name is Mary Scurlock and I am pleased to have been asked to share my perspective on the impacts of forest harvest on fish and water, with an emphasis on nonfederal lands in Oregon.  This is an important topic that should include the state’s science experts at DEQ, ODFW, ODF, EPA, NOAA and many others.  I will speak from my experience in the policy arena, where I have gained familiarity with the scientific literature and issues. (I have included a short description of some of my professional experience in my written statement, only some of which I will include in my oral remarks).

Affiliations and Experience: I am an independent freshwater policy consultant currently representing two conservation-oriented coalitions, both of which deal exclusively with forest practices as they affect aquatic ecosystems on private lands.

In Oregon, I currently serve as the coordinator of the Oregon Stream Protection Coalition, a 23-member ad hoc group of conservation and fishing industry groups united in support of stronger baseline stream protection rules under the Oregon Forest Practices Act.  In this capacity I have appeared consistently before the Board of Forestry for the last four years in connection with the design of stream protection rules that are capable of meeting the Board of Forestry’s duty to implement management practices that fully comply with water quality standards for stream temperature.  This work relates back to issues raised during my two years of service on the state’s Forest Practices Advisory Committee, concluding in 2000.

In Washington state, since 2012 I have served as the Forests and Fish Conservation Caucus representative to the Timber, Fish and Wildlife Policy Committee, a standing multi-stakeholder committee of the Washington Forest Practices Board and an integral part of the state’s landmark statewide forest practices aquatic habitat conservation plan (WA DNR, 2005) and its adaptive management program.

Prior to 2012, I worked for over twenty years on forest issues as an advocate for freshwater ecosystem conservation across the west at Pacific Rivers Council.  My work involved evaluation of a suite of state forest practices rules as well as advocacy for Congressional funding for road-related watershed restoration on federal lands. Projects included evaluation of risks associated with federal forest thinning in riparian areas and coordination of expert science input and comments on numerous state and federal forest policies, including a series of multi‐species aquatic conservation habitat conservation plans under the Endangered Species Act in Oregon (Weyerhaeuser, Elliott State Forest, Tillamook and Clatsop State Forests), Washington (Simpson/Green Diamond & Forests and Fish), Montana and Idaho (Plum Creek) and California (Simpson/Green Diamond).  I was educated at Duke University (BA, 1985) and Boston University School of Law (JD, 1989).  I am an inactive member of the Oregon State Bar.

  1. FOREST PRACTICES IMPACTS ON STREAMS AND FISH

The potential effects of forest practices on streams, fish and other aquatic species is a broad subject, and includes not only the effects of logging itself, but chemical application and every aspect of moving trees from where they stand out of the forest, i.e. skid trails and roads.  In general, however, the more harvest that takes place the near streams the greater the harm to fish and water quality, and the greater the proportion of a drainage basin that is harvested at the same time, the greater the impacts.  Forest practices rules in Oregon and elsewhere tend to limit activities in the near stream environment at the site level only — i.e. in the riparian area and sometimes around other sensitive sites– and don’t generally explicitly limit cumulative watershed effects.

As described by ODFW biologists, there are four key habitat factors influencing fish productivity:

  • Stream Complexity
  • Large Wood
  • Spawning habitat quality
  • Water quality

    ODFW described the key aspects of these factors that are affected by forest management as:

  • Large wood delivery
  • Riparian stand condition
  • Beaver dams
  • Fine sediment
  • Cold water[i]

Leaving forest chemical impacts aside for this discussion, the overarching adverse impacts to fish habitat from private timber harvest in Oregon today are caused by:

1) Ground disturbance close to streams, allowing sediment delivery and stream habitat impairment;

2) Reduction of near-stream forest canopies, decreasing shade and allowing solar penetration that warms surface waters and disrupts thermal regimes;

3) Increased risk of landslides from forest removal and road-related slope destabilization;

4) Perpetuation of predominantly young forests or clearcuts in riparian areas, depriving streams of the larger downed wood necessary to regulate instream sediments and form the types of instream habitats with which our wild native fishes evolved.

Numerous authoritative sources are available supporting the need to increase stream protection from logging on private lands in Oregon in order to protect and restore native fish. These include but are not by any means limited to a 1995 report to the Oregon legislature[ii], a 1999 report by the state’s own science independent science team,[iii] and a series of findings by a host of federal agencies in connection with Endangered Species Act salmon listings,[iv] water quality standards compliance under the Clean Water Act,[v] and coastal water pollution control under the Coastal Zone Management Act.[vi]  .

I quote here but a few examples:

  • In 1999, when reviewing essentially the same rules in force today, the IMST found that: “Current rules for riparian protection, large wood management, sedimentation, and fish passage are not adequate to reserve depressed stocks of wild salmonids,” a common goal of Oregon state policy and the federal Endangered Species Act.[vii]
  • In 2001, three federal agencies found: “The evidence is . . . overwhelming that forest practices on private lands in Oregon contribute to widespread stream temperature problems and degraded salmonid habitat conditions. . . . [P]ractices under the [Oregon] FPA adversely affect temperature-related factors such as shade levels, surface erosion, landslide rates, stream morphology and substrate, and landscape-scale conditions.” [viii]
  • In 2009, a science team’s review of the status of Oregon Coast coho salmon, by NOAA’s National Marine Fisheries Service did not find evidence to support the adequacy of the Oregon’s logging rules to protect coho salmon, concluding that: “On some streams, forestry operations conducted in compliance with [the OFPA] are likely to reduce stream shade, slow the recruitment of large woody debris, and add fine sediments. Since there are no limitations on cumulative watershed effects, road density on private forest lands, which is high throughout the range of this ESU, is unlikely to decrease.” [ix]
  • In 2009, an Oregon Department of Forestry study confirmed the implications of prior studies and reviews that harmful stream warming occurs on a widespread basis after harvest in compliance with current forest practices rules intended to protect streams in violation of applicable water quality criteria. In 2012 this study supported a finding by the Board of Forestry “there is evidence that forest practices conducted under existing regulations do not insure forest operations meet the state water quality standard for protecting cold water on small and medium fish streams) and directed the Department to begin the rule analysis process that could lead to revision of the riparian protection standards to increase the maintenance and promotion of shade on small and medium fish streams.”  (The Board will consider a specific rule proposal on July 23, 2015).[x]
  • In January 2015, NOAA and EPA “disapproved” Oregon’s Coastal nonpoint pollution control program citing the need for found additional management measures (beyond those in FPA rules and the voluntary programs) for riparian protection around medium-sized and small fish-bearing streams and along at least some nonfish streams. Concerns were also raised about management of landslide prone areas and legacy roads.[xi]
  1. IMPORTANCE OF PRIVATE FOREST LANDS TO NATIVE FISH CONSERVATION

There are 10.6 million acres of private forestland in Oregon, much of which encompasses streams that provide direct habitat for fish and the remainder of which feed into downstream fish-bearing waters.   The connection between recovery of native salmon and adequate riparian protection on these lands has been repeatedly made in federal ESA listing and status review decisions, particularly for two coho salmon populations listed on the Oregon Coast and in relation to stream temperature, large wood recruitment, road construction, unstable slope management and cumulative effects.[xii]

It is well-established that federal lands management policies alone cannot provide for recovery of wild salmonids.  The science report that provided the basis for the 1994 Northwest Forest Plan which established large riparian reserves around streams on federal forests – and which still governs federal lands in western Oregon was clear that despite the low-risk approach proposed for federal lands, private forest streams comprise too much of the landscape for federal lands to carry the full conservation burden for fish recovery in Oregon:  “state forest practices rules do not adequately protect ecological effectiveness nor provide any margin of error to accommodate natural disturbances or uncertainties in knowledge. To succeed, the federal Aquatic Conservation Strategy should be accompanied by companion strategies for nonfederal lands.”[xiii]

In sum, nonfederal forestlands are a key factor limiting the recovery of native fish.  This is true despite the fact that historically there was a great deal more high quality habitat on what is now agricultural land.  Federal recovery plans for ESA listed Coho salmon have consistently called for review and improvement of forest practices rules on nonfederal forestlands in Oregon.[xiv]

How are Oregon’s fishes and fish habitat doing? 

The status of fish populations is largely determined by the interplay between ocean conditions and freshwater habitat conditions, as well as hatchery and harvest practices.   Under current management on federal, state and to a lesser extent, private lands, degradation has slowed in the past two decades. We are not at the point where the status quo can support the recovery state and federal policy seeks, especially when ocean conditions are poor.

“Habitat complexity is generally decreasing in the [Oregon Coast coho] ESU; given the large amount of impaired habitat and pace of continued disturbance, degradation still outpaces restoration.” (Stout et. al. 2010)

Although ODFW habitat monitoring data show some mild recovery of riparian forests from the intense logging and poor practices of the 1950s-90s, and some localized benefits from active restoration projects, this improvement is offset by declining conditions in other streams. From an historical perspective, we still have a long way to go in terms of overall fish numbers over a sustained period (using coastal coho as an example):  (Download the PDF to view the figures)

Figure 1: ODFW Spawner and Harvest Numbers` for Oregon Coast Coho (pre 2014) 

Figure 2: ODFW Depiction of Stream Use by Fish with Land Ownership

(from presentation to Oregon Board of Forestry, June 2014)

Figure 3: ESA listed salmon and steelhead in Western Oregon  (Source: ODFW)

III. CURRENT POLICY CHANGES UNDER CONSIDERATION AT THE BOARD OF FORESTRY TO PREVENT HARVEST-RELATED STREAM WARMING

Issue Summary:  The conservation of cold water is a fundamental goal of Oregon’s water quality standards that is critical to species conservation and recovery in the face of climate change.  Many of Oregon’s streams and rivers are too warm and exceed temperature standards required by the Clean Water Act because of land use impacts.  Warm streams can stress or kill native fish and other aquatic species, help spread invasive species, and promote extinctions.

Oregon’s logging rules governing timber harvest on private lands provide significantly less stream protection than those in Washington and California.  (See Attachment 1, comparison graphs prepared by the Oregon Stream Protection Coalition).[xv]

Since 1994 no changes have been made to the size of the riparian (streamside) buffer that must be protected from logging, or to the protection required within these buffers.

This has caused legal problems for the Oregon.  For example, the National Marine Fisheries Service (NMFS, the agency responsible for threatened and endangered salmon and steelhead) and the Environmental Protection Agency (EPA, administrator of the Clean Water Act) have “disapproved” Oregon’s coastal water quality program largely due to inadequate stream protection on private lands.  The two agencies want less logging and more protection of stream temperatures, as well as more protection from road- and landslide-related sediment.  Failure to correct these problems jeopardizes over $2 million in federal funds annually to DEQ and the Department of Land Conservation and Development.[xvi]

  • The RipStream Rulemaking: stream rule change now under consideration

Oregon’s Forest Practices Act requires that the Board’s logging rules meet water quality standards developed by DEQ.[xvii]  The presumed adequacy of the rules to protect water quality is why landowners can’t be prosecuted by DEQ for water quality standards violations if they comply with the rules.  Inadequate rules could leave landowners vulnerable to water quality enforcement.

The ability of the Board’s logging practices to prevent logging-related stream warming in violation of DEQ water quality standards has been in question since the 1990s, but the Board didn’t believe it had enough information to warrant a rule change.  Between 2002 and 2010, ODF conducted the “RipStream” research study[xviii] finding that, on average, logging on under current rules caused stream temperatures to increase by 0.7˚ C  — a conservative average given that it included sites that left more trees than required by current rules.  (On sites that were harvested down to the minimum required, temperatures increased by an average of 1.9˚ C).

In January 2012, the Board of Forestry determined, on the basis of “RipStream,”[xix] that resource degradation exists because current rules allow removal of too many trees in the riparian areas of small and medium fish-bearing streams causing warming in violation of a water quality standard called the “Protecting Coldwater Criterion” (PCW).[xx]  The PCW is a Department of Environmental Quality (DEQ) standard that limits stream warming to protect the natural thermal regime of Oregon streams and is part of DEQ’s temperature water quality standard.  The finding triggered the Board’s process to develop new rules to prevent continued violations of the PCW in accordance with the Board’s duty under state law.[xxi]

The Board has made several public decisions in support of a rule change,[xxii] and the Department of Forestry (ODF) staff scientists have developed an analytical model to identify how many trees are needed to meet the PCW standard.   The Departments’s extensive analytical process indicates that substantially more trees must be left standing to meet the PCW.  Whereas current requirements often are limited to just leaving 20 feet of trees in the riparian buffer, ODF is showing that meeting the PCW may require the equivalent of about a 100-120 foot no-cut buffer.

The rationale for setting strict limits on measurable human-caused stream warming is scientifically and legally sound

  • Allowable stream warming is small because the goal of the standard is to ensure that allowable warming is not harmful to fish and coldwater communities. (DEQ, 2003, Temperature Technical Advisory Team Report)
  • The standard is designed to protect the temperature regimes and entire aquatic ecosystems from both acute and chronic human-cased warming, especially short-term, reach level impacts.
  • Meeting the standard is necessary to preserve the capacity of Oregon’s surface waters to assimilate natural fluctuations in temperature due to year-to-year climate variations and to better maintain cold-water communities in a warming climate.
  • The mandate for Oregon’s Protecting Coldwater Standard is deeply embedded in state and federal law embedded in state and federal law; the Clean Water Act prohibits the degradation of existing high quality waters without an explicit public decision of economic necessity.
  • DEQ and EPA technical staff and the expert advisory panels these agencies have assembled should be consulted in matters related to Oregon’s stream temperature standards.
  1. FUTURE POLICY CHANGES STILL ARE NEEDED

All fish streams need stronger protection.  The focus of current ODF policy proposals is on a portion of the fishbearing network bearing listed salmon, steelhead and bull trout, which comprise a small fraction of all fishbearing streams.  Also, depending on the buffers selected to meet the Protecting Coldwater Criterion, large wood supplies may not be ensured by buffers designed to meet only this criterion.

Nonfish, headwater streams are essential to fish conservation and recovery. The science is clear that headwater stream protection is important for fish downstream.  Research shows sediment and hydrologic change from logging headwater streams.  The effects of logging soil disturbance are substantial and pervasive, but can be largely avoided through no cutting, yarding or felling in ~30 m buffers where needed to capture inner gorges.  (Rashin et al. 2006).  Even with buffers, logging increases runoff, causing channel and gully erosion and persistently elevated sedimentation.  Effective expansion of channelized flow generates new sediment and connects new and existing sediment sources to surface waters with sustained elevated turbidity as a primary effect, which extends downstream.  However, buffers alone may not be adequate to mitigate hydrologic effects that are a function of high cumulative watershed disturbance levels. (Reid et al. 2010; Keppler 2012; Klein et al. 2012).

Improved management is needed on landslide prone slopes that do not pose a public safety risk but the logging of which will increase landslide rates beyond background levels .

The impacts of older, legacy road systems need addressing through a variety of mechanisms.

ATTACHMENT 1

Oregon’s logging rules governing timber harvest on private lands provide significantly less stream protection than those in Washington and California[xxiii]

Download the PDF version of the testimony to view illustrative charts 

ENDNOTES

[i] June 23, 2014 presentation to the Oregon Board of Forestry by Kim Jones, ODFW available on Board of Forestry website.

[ii] Sobel, M. J., Nisbet, R. A., Botkin, D. B., Center for the Study of the Environment. (1994). Status and future of salmon of Western Oregon and Northern California. Santa Barbara, Calif.: Center for the Study of the Environment (know as “the Botkin Report” to the Oregon Legislature, finding Oregon forest practices rules inadequate for recovery of aquatic ecosystems in western Oregon, particularly with respect to large wood supplies).

[iii] Independent Multidisciplinary Science Team. 1999. Recovery of Wild Salmonids in Western Oregon Forests: Oregon Forest Practices Act Rules and the Measures in the Oregon Plan for Salmon and Watersheds. Technical Report 1999-1 to the Oregon Plan for Salmon and Watersheds, Governor’s Natural Resources Office, Salem, Oregon.  http://www.fsl.orst.edu/imst/reports/1999-1.pdf  (including recommendations to increase tree retention in riparian buffers, and to apply buffers to medium and small non-fishbearing streams).

[iv] See for example NOAA-NMFS, 2010.  75 Federal Register 29489-29506 Listing Endangered and Threatened Species: Completion of a Review of the Status of the Oregon Coast Evolutionarily Significant Unit of Coho Salmon; Proposal to Promulgate Rule Classifying Species as Threatened (May 26, 2010). http://www.gpo.gov/fdsys/pkg/FR-2010-05-26/html/2010-12635.htm  (based on science team’s review of the status of Oregon Coast coho salmon, NOAA made findings in this proposed rule (final as of June 20, 2011) regarding the adequacy of the Oregon Forest Practices Act’s administrative framework to protect coho salmon, specifically identifying uncertainty over (1) whether the widths of riparian management areas are sufficient to fully protect riparian functions and stream habitats; (2) whether operations allowed within riparian management areas degrade stream habitats; (3) what operations are appropriate on high-risk landslide sites; and (4) whether watershed-scale effects, including those from roads, are adequately controlled.  NMFS concluded that: “Based on the available information, we are unable to conclude that the Oregon Forest Practices Act adequately protects OC coho habitat in all circumstances. On some streams, forestry operations conducted in compliance with this act are likely to reduce stream shade, slow the recruitment of large woody debris, and add fine sediments. Since there are no limitations on cumulative watershed effects, road density on private forest lands, which is high throughout the range of this ESU, is unlikely to decrease.”  (FR at 29499-500).  See also Stout et al. 2011. Scientific conclusions of the status review for Oregon Coast coho salmon (Oncorhynchus kisutch) (Draft revised report of the Oregon Coast Coho Salmon Biological Review Team. NOAA/NMFS/NWFSC, Seattle, WA)

[v] EPA and NOAA-NMFS.  June 12, 2008. NOAA and EPA Preliminary Decisions on Information Submitted by Oregon to Meet Coastal Nonpoint Program Conditions of Approval (12 pp)( “Oregon lacks adequate management measures under the Oregon Forest Practices Act (FPA) rules for protecting water quality;” “Oregon still lacks adequate measures for protecting riparian areas of medium, small and non-fish bearing streams, high risk landslide areas, and for addressing the impacts of legacy roads.  A broad body of science continues to demonstrate that the FPA rules do not adequately protect water quality[.];” “While we acknowledge Oregon’s extensive voluntary efforts, and its incremental progress on the regulatory front, NOAA and EPA do not believe the progress made is adequate. . . . . additional revisions to Oregon’s FPA rules are needed to fully protect water quality and beneficial uses.”  (pp. 10-12).

[vi] See e.g. 2010 Oregonian Article on Coastal Zone Lawsuit; See e.g. Frissell Declaration supporting CZARA disapproval – OR Logging Rules-3-14-14.pdf

[vii] IMST, Report 1999-1, 1999.

[viii] EPA-FWS-NMFS, 2/28/01 Stream Temperature Sufficiency Analysis Letter to ODF and ODEQ.

[ix] NOAA-NMFS, 2010.  75 Federal Register 29489-29506 at 29499-500, Listing Endangered and Threatened Species: Completion of a Review of the Status of the Oregon Coast Evolutionarily Significant Unit of Coho Salmon; Proposal to Promulgate Rule Classifying Species as Threatened (May 26, 2010). http://www.gpo.gov/fdsys/pkg/FR-2010-05-26/html/2010-12635.htm   See also  Stout, H.A., P.W. Lawson, D. Bottom, T. Cooney, M. Ford, C. Jordan, R. Kope, L. Kruzic, G.Pess, G. Reeves, M. Scheuerell, T. Wainwright, R. Waples, L. Weitkamp, J. Williams and T. Williams. 2011. Scientific conclusions of the status review for Oregon Coast coho salmon (Oncorhynchus kisutch). Draft revised report of the Oregon Coast Coho Salmon Biological Review Team. NOAA/NMFS/NWFSC, Seattle, WA.

[x] See minutes of January 4, 2012 Board of Forestry Meeting at http://www.oregon.gov/odf/board/docs/2012_january/bofmin_20120104_minutes.pdf

[xi] NOAA-EPA.  2015. NOAA/EPA Finding that Oregon Has Not Submitted a Fully Approvable Coastal Nonpoint Program.  23 pp. http://coast.noaa.gov/czm/pollutioncontrol/media/ORCZARAdecision013015.pdf

[xii] See e.g. 62 FR 24588, May 6, 1997 (listing of Southern Oregon/Northern California Coastal coho) and NMFS, 2009 (status review of Oregon Coast salmon).

[xiii] Federal Ecosystem Management Assessment Team Report, 1993 at V-61.

[xiv] See e.g. NOAA-NMFS, 2914, Final SONCC Recovery Plan, 3-54.

[xv] Washington’s rules are two to three times more protective of streams than Oregon’s rules.  See for example http://www.deq.state.or.us/wq/dwp/docs/TurbidityReports/Effect of logging incident Falls City.pdf (quoting EPA senior staff David Powers comparing the two states’ logging rules).  See also Olsen et al. 2007 at page 92 for a comparison of forest practices policies in the Pacific Northwest (article entitled Biodiversity management approaches for stream–riparian areas: Perspectives for Pacific Northwest headwater forests, microclimates, and amphibians), and analysis done by Pacific Rivers Council and Washington Forest Law Center available on their websites.

[xvi] 2010 Oregonian Article on Coastal Zone Lawsuit

[xvii] The Forest Practices Act requires the Board to:  “establish best management practices and other rules applying to forest practices as necessary to insure that to the maximum extent practicable nonpoint source discharges of pollutants resulting from forest operations on forestlands do not impair the achievement and maintenance of water quality standards established by the Environmental Quality Commission for the waters of the state.”  ORS 527.765. It is the purported sufficiency of the rules that justifies exemption of logging operations from direct enforcement by DEQ against landowners and operators for standards violations.   ORS 468B.110(2).

[xviii]RipStream resulted in two peer-reviewed publications:  Groom et al. 2011, Response of Western Oregon (USA) stream temperatures to contemporary forest management, Forest Ecology and Management, 262: 1618-1629; Groom et al. 2011, Stream Temperature Change detection for state and private lands in the Oregon Coast Range.  Water Resources Research 47.ODF

[xix] Groom et al. 2011, Response of Western Oregon (USA) stream temperatures to contemporary forest management, Forest Ecology and Management, 262: 1618-1629.

[xx] The PCW prohibits a 0.3˚ C or greater increase in stream temperature from logging on certain fish-bearing streams.    See Subsections (a) and (c) of OAR 340-041-0028 (11) which read: “(a) Except as described in subsection (c) of this rule, waters of the State that have summer seven-day-average maximum ambient temperatures may not be warmed by more than 0.3 degrees Celsius (0.5 degrees Fahrenheit) above the colder water ambient temperature. This provision applies to all sources taken together at the point of maximum impact where salmon, steelhead or bull trout are present….(c) The cold water protection narrative criteria in subsection (a) does not apply if: (A) There are no threatened or endangered salmonids currently inhabiting the water body; (B) The water body has not been designated as critical habitat; and (C) The colder water is not necessary to ensure that downstream temperatures achieve and maintain compliance with the applicable temperature criteria.”  See also ODEQ, 2011.  Internal Management Directive: Nonpoint Source Compliance with the Protecting Coldwater Criterion of the Temperature Standard

[xxi] The Oregon Forest Practices Act requires an affirmative finding of resource degradation for the Board to increase logging restrictions to protect environmental values.  A finding that a water quality standard is not met by the rules is legally adequate to serve as a resource degradation finding. (See e.g. 6/23/14 statement of counsel at Board Riparian Rules Workshop and 2005 Opinion of Assistant Attorney General Jas. Adams).

[xxii] Board decisions to date include:  1) Current rules on small and medium fish streams don’t meet the PCW (“the degradation finding”) (January 2012); 2) acceptance of a “Scientific Evidence Review” Report that reviews and synthesizes available scientific information relevant to the riparian rulemaking and the relationship between riparian harvest/protection and stream temperature (final report approved November 2013); 3) Conceptual agreement on how “maximum extent practicable” will be defined for this rulemaking (November 2012).

[xxiii] Washington’s rules are two to three times more protective of streams than Oregon’s rules.  See for example http://www.deq.state.or.us/wq/dwp/docs/TurbidityReports/Effect of logging incident Falls City.pdf (quoting EPA senior staff David Powers comparing the two states’ logging rules).  See also Olsen et al. 2007 at page 92 for a comparison of forest practices policies in the Pacific Northwest (article entitled Biodiversity management approaches for stream–riparian areas: Perspectives for Pacific Northwest headwater forests, microclimates, and amphibians).

 

Oregon Stream Protection Coalition Riparian Rules Briefing Document

Download the Oregon Stream Protection Coalition’s Briefing Document, which explains the changes that OSPC is pushing for to improve stream protection rules in Oregon.

The following is an excerpt of the text of the document.  Download the full document for the full text and accompanying graphs and pictures.

Logging Allowed by Current Rules Causes Harmful Stream Warming
Larger stream buffers needed to protect salmon and other aquatic species.

Governor Brown’s leadership is needed to help the Oregon Board of Forestry stand up to the timber lobby and propose adequate logging rules to protect streams on private timberlands covering 10.6 million acres statewide. Conservation and fishing groups are concerned that what promises to be the most significant change to Oregon’s forest practices rules in over 20 years will fail to meet its objectives because buffers will be too small and apply on too few streams. Governor Brown can help by conveying that she is serious about bringing Oregon’s forest practices rules up to snuff.

BACKGROUND

Conservation of cold water is a fundamental goal of Oregon’s water quality standards that is critical to species conservation and recovery in the face of climate change.  Many Oregon streams already are too warm and exceed temperature standards required by the Clean Water Act because of land use impacts.  Warm streams can stress or kill native fish and other aquatic species, help spread invasive species, and promote extinctions.

The need to increase stream protection from logging on private lands has long been acknowledged by the state’s own science team[i] and a host of federal agencies in connection with Endangered Species Act salmon listings,[ii] water quality standards compliance under the Clean Water Act,[iii] and coastal water pollution control under the Coastal Zone Management Act.[iv]

For example, National Marine Fisheries Service (NMFS, the agency responsible for ocean-going fishes) identified private lands logging as a key limiting threat to Southern Oregon/Northern California Coastal (SONCC) coho when it was listed in 1997 as Threatened. [v]  A 2009 status review found that: “. . . the Oregon Forest Practice Rules represent the least conservative forest practice regulations administered by the state governments within the SONCC coho salmon ESU, “ and that “[o]n some streams, forestry operations conducted in compliance with this act are likely to reduce stream shade, slow the recruitment of large woody debris, and add fine sediments.”[vi]

In January 2015, NMFS and the Environmental Protection Agency (administrator of the Clean Water Act) disapproved Oregon’s coastal water quality program largely due to poor stream protection on private lands.  Continued failure to correct these problems will lead to loss of over $2 million in federal funds annually.[vii]

Nonetheless, since 1994 no changes have been made to the size of riparian buffers the limitations on logging within buffers.

WHY IS THE BOARD CONTEMPLATING NEW RULES NOW?

 On the basis of a study called “RipStream,”[viii] the Board of Forestry determined that current rules allow removal of too many trees in the riparian buffer area,  allowing stream warming that violates a water quality standard called the “Protecting Coldwater Criterion” (PCW), [ix] a Department of Environmental Quality (DEQ) standard intended to protect cold streams from heating up.[x]  Logging down to the minimum buffers under current rules is now understood to cause warming of – on average – about 1.45 degrees C.   The standard is .3 degrees C.

Oregon’s Forest Practices Act requires that the Board’s logging rules meet water quality standards developed by DEQ.[xi]  The presumed adequacy of the rules to protect water quality is why landowners can’t be prosecuted by DEQ for water quality standards violations if they comply with the rules.  Inadequate rules could leave landowners vulnerable to water quality enforcement.

WHAT DOES THE SCIENCE TELL US IS NEEDED?

ODF scientists have developed an analytical model to identify how many trees are needed to meet the PCW standard. Whereas current requirements often are limited to just leaving 20 feet of trees in the riparian buffer, ODF analysis shows that in order to prevent stream warming the equivalent of about a 100 foot no-cut buffer is needed.

HOW CAN WE KEEP THE BOARD ON TRACK?

The Board of Forestry is under extreme pressure from the timber industry to minimize changes to the status quo.  Conservation and fishing groups are concerned that the state will elect to enact buffers that are too small (75 feet is not enough) and/or that improved buffers will only apply to a small subset of the streams that need them (if only applied to “salmon, steelhead and bull trout reaches” 25% or less of streams to which warming limitations apply will benefit).

Robust riparian protection is needed now on at least all perennial fish-bearing streams in western Oregon, with a clear plan for improving protection on all perennial nonfish streams and in Eastern Oregon in the near future.

[i] Independent Multidisciplinary Science Team. 1999. Recovery of Wild Salmonids in Western Oregon Forests: Oregon Forest Practices Act Rules and the Measures in the Oregon Plan for Salmon and Watersheds. Technical Report 1999-1 to the Oregon Plan for Salmon and Watersheds, Governor’s Natural Resources Office, Salem, Oregon.  http://www.fsl.orst.edu/imst/reports/1999-1.pdf  (including recommendations to increase tree retention in riparian buffers, and to apply buffers to medium and small non-fishbearing streams).

[ii] See for example NOAA-NMFS, 2010. 75 Federal Register 29489-29506 Listing Endangered and Threatened Species: Completion of a Review of the Status of the Oregon Coast Evolutionarily Significant Unit of Coho Salmon; Proposal to Promulgate Rule Classifying Species as Threatened (May 26, 2010). http://www.gpo.gov/fdsys/pkg/FR-2010-05-26/html/2010-12635.htm  (based on science team’s review of the status of Oregon Coast coho salmon, NOAA made findings in this proposed rule (final as of June 20, 2011) regarding the adequacy of the Oregon Forest Practices Act’s administrative framework to protect coho salmon, specifically identifying uncertainty over (1) whether the widths of riparian management areas are sufficient to fully protect riparian functions and stream habitats; (2) whether operations allowed in riparian t areas degrade stream habitats; (3) what operations are appropriate on high-risk landslide sites; and (4) whether watershed-scale effects, including those from roads, are adequately controlled.  Conclusion was that “[b]ased on the available information, we are unable to conclude that the Oregon Forest Practices Act adequately protects OC coho habitat in all circumstances. On some streams, forestry operations conducted in compliance with this act are likely to reduce stream shade, slow the recruitment of large woody debris, and add fine sediments. Since there are no limitations on cumulative watershed effects, road density on private forest lands, which is high throughout the range of this ESU, is unlikely to decrease.”  (FR at 29499-500).  See also Stout et al. 2011. Scientific conclusions of the status review for Oregon Coast coho salmon (Oncorhynchus kisutch) (Draft revised report of the Oregon Coast Coho Salmon Biological Review Team. NOAA/NMFS/NWFSC, Seattle, WA)

[iii] EPA and NOAA-NMFS.  June 12, 2008. NOAA and EPA Preliminary Decisions on Information Submitted by Oregon to Meet Coastal Nonpoint Program Conditions of Approval (12 pp) (“Oregon lacks adequate management measures under the Oregon Forest Practices Act (FPA) rules for protecting water quality;” “Oregon still lacks adequate measures for protecting riparian areas of medium, small and non-fish bearing streams, high risk landslide areas, and for addressing the impacts of legacy roads.  A broad body of science continues to demonstrate that the FPA rules do not adequately protect water quality[.];” “While we acknowledge Oregon’s extensive voluntary efforts, and its incremental progress on the regulatory front, NOAA and EPA do not believe the progress made is adequate. . . . . additional revisions to Oregon’s FPA rules are needed to fully protect water quality and beneficial uses.”  (pp. 10-12).

[iv] See e.g  2010 Oregonian Article on Coastal Zone Lawsuit; See e.g. Frissell Declaration supporting CZARA disapproval – OR Logging Rules-3-14-14.pdf

[v] National Marine Fisheries Service. 2014. Final Recovery Plan for the Southern Oregon/Northern California Coast Evolutionarily Significant Unit of Coho Salmon (Oncorhynchus kisutch). National Marine Fisheries Service. Arcata, CA. http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/recovery_planning_and_implementation/southern_oregon_northern_california_coast/southern_oregon_northern_california_coast_salmon_recovery_domain.html

[vi] NMFS 2009; NMFS 2014 (SONCC Recovery Plan, Chapter 3).

[vii]  NOAA Press Statement on Oregon Coastal DisapprovalFederal Determination January 2015; 2010 Oregonian Article on Expected Federal Disapproval

[viii] Groom et al. 2011, Response of Western Oregon (USA) stream temperatures to contemporary forest management, Forest Ecology and Management, 262: 1618-1629.

[ix] The PCW prohibits a 0.3˚ C or greater increase in stream temperature from logging on certain fish-bearing streams.  See Subsections (a) and (c) of OAR 340-041-0028 (11). See also ODEQ, 2011.  Internal Management Directive: Nonpoint Source Compliance with the Protecting Coldwater Criterion of the Temperature Standard

[x] The Forest Practices Act makes it very difficult to change the water protection rules that govern logging near streams on private land: there must be an affirmative finding of resource degradation for the Board to increase logging restrictions to protect environmental values.  A finding that a water quality standard is not met by the rules is legally adequate to serve as a resource degradation finding. (6/23/14 statement of counsel at Board Riparian Rules Workshop).

[xi] The Oregon Forest Practices Act requires the Board to:  “establish best management practices and other rules applying to forest practices as necessary to insure that to the maximum extent practicable nonpoint source discharges of pollutants resulting from forest operations on forestlands do not impair the achievement and maintenance of water quality standards established by the Environmental Quality Commission for the waters of the state.”  ORS 527.765. It is the purported sufficiency of the rules that justifies exemption of logging operations from direct enforcement by DEQ against landowners and operators for standards violations. ORS 468B.110(2).

Strengthen Forestry Rules to Protect our Streams: Guest OpEd in the Register-Guard by Chris Frissell and Mary Scurlock:

June 23, 2015

By Chris Frissell  and Mary Scurlock
for the Register Guard

Something really good for streams and salmon could be about to happen at the Oregon Board of Forestry. The stars are aligned for reform: a straightforward legal mandate, strong support from homegrown science and a new governor owing no special allegiance to timber interests.

But if history — or public posturing at recent board meetings — is any guide, nothing much will happen. For decades, citizens, conservation and fishing groups, scientists and federal agencies have lambasted Oregon’s logging rules for failing to protect water quality and fish habitat. Fish-friendly stream rules are a broken promise of former Gov. John Kitzhaber’s heralded Oregon Plan for Salmon and Watersheds, and in the absence of reform the state continues to draw sustained fire from federal agencies and concerned citizens.

The scientific basis for leaving more trees next to streams has grown stronger with time, and it’s become more certain that voluntary restoration projects can’t substitute for statewide stream protection policies. Native salmon, trout and amphibian species are still fighting just to survive, let alone recover.

Washington and California responded years ago by adopting logging rules that are far more effective at keeping water cool and promoting recovery of fish habitats. Oregon reneged.

Still at the epicenter of this tale is the seven-member Board of Forestry, whose legal mandate is to adopt logging rules that meet state water quality standards and the federal Clean Water Act. The water quality goals the board’s rules must meet are set by the state’s expert water quality authority, the Environmental Quality Commission, and are designed to protect the public’s right to clean water and the fish and wildlife dependent on freshwater ecosystems.

Historically, the board has taken its cues from forest landowners and logging operators, who have little incentive to support stronger rules because legally they are completely safe from prosecution for degrading water quality — even though it is public knowledge that current rules don’t effectively protect streams. State law presumes that if a landowner or harvester follows the board’s logging rules, water quality standards will be met — even if the logging actually degrades water quality. This arrangement would make perfect sense if the logging rules actually met water quality standards (they don’t), or if the board were nimble and politically willing to respond quickly to information showing its rules need reform (it hasn’t been to date).

We know beyond any doubt that our current logging rules are deficient. Clearcutting is allowed to within 20 feet of most fish-bearing streams — many of which harbor federally protected salmon, steelhead or trout. Logging-induced shade loss allows the sun to heat water beyond legal limits. The few trees remaining can’t provide enough wood for streams to create pool habitats or regulate the flow of sediment and nutrients from the adjacent clearcuts.

The result: streams that are warmer and generally more hostile to cold-water-loving salmon and other freshwater species. The state’s most recent analysis shows that a 100- to 120-foot buffer is needed to prevent illegal stream warming; this recommendation doesn’t consider climate change, which will make streamside protection even more critical.

In the past, industry’s chokehold on the status quo was assured by industry domination of the forestry board’s consensus voting process. Today, the board votes by majority, and representation is far more balanced. Nonetheless, the board was presented six years ago with irrefutable scientific evidence from the Department of Forestry’s own study that current logging rules allow significant instream warming. Yet logging still proceeds today under the same old rules.

Is it still acceptable for Board of Forestry members to serve short-term private profits, even though public officials are sworn to serve the public? At recent public meetings, certain members of the board openly state they won’t support leaving more trees next to streams because they believe complying with laws that protect the public’s water isn’t necessary. These board members apparently didn’t get the memo: It is not within the board’s authority or expertise to question the water quality laws. It is the board’s duty to meet them.

It’s now beyond obvious that stronger rules are necessary to protect stream ecosystems that belong to and benefit us all — not just those who take short-term profit by streamside logging on private forestlands. Gov. Kate Brown can help by directing the board to follow the science and the law to enact the streamside protection necessary to meet Oregon’s water quality standards.

Chris Frissell is an aquatic ecologist affiliated with the University of Montana’s Flathead Lake Biological Station. Mary Scurlock is a freshwater law and policy expert who coordinates the Oregon Stream Protection Coalition.

Materials presented at the June 3 Board of Forestry Meeting

On June 3, 2015, the Board of Forestry held a meeting during which the Board discussed the development of riparian rule prescriptions.

The Oregon Stream Protection Coalition presented the following materials to the Board:

1) Testimony to the Board by Mary Scurlock.  OSPC Testimony 

Attachments to Mary Scurlock’s testimony included:

a) A discussion of applying prescriptions to only Salmon and Steelhead bearing streams: fish bearing streams

b) A discussion of the economic values of protecting riparian forested areas: Carbon Values for Riparian Buffers

c) a summary of the differences between stream protection protections in Oregon, Washington, and California: state stream protection comparison

2) Testimony by Dr. Chris Frissell: Dr. Frissell’s testimony explained why a conservative coldwater protective standard applied to all streams (whether fish or nonfish-bearing) that contribute to salmon, steelhead, and bulltrout habitat will be necessary to assure compliance with the protecting cold water criterion.  Dr. Frissell provided criticism and evaluation of the Oregon Department of Forestry’s report, analysis, and summaries regarding the temperature effects of various proposed streamside logging prescriptions,

3) Statement of Chris Mendoza: Riparian and aquatic ecologist Chris Mendoza submitted a statement questioning Oregon Department of Forestry’s large wood recruitment modeling and claims about the large wood recruitment rate that will occur with a 100 foot no cut riparian management zone.

 

Oregonian Story: Whistleblower videos reveal helicopter spraying workers with weed killers

By  Rob Davis
The Oregonian/ Oregon Live
May 20, 2015

Click here to read the story on OregonLive and view the videos.

Exposed atop the barren clearcut in Oregon’s coastal mountains, he hid in the only place he could.

A helicopter circled overhead, spraying a fine mist of toxic weed killers. Darryl Ivy took refuge inside his pickup: Windows up, doors shut.

The scene was captured on camera, one of more than 200 videos Ivy recorded on his smartphone.

Again and again, herbicides rained down. The milky chemical mix stained Ivy’s windshield white and turned his phlegm red.

Ivy, a truck driver, spent 17 days this spring on a spray crew in Douglas County, the heart of Oregon’s timber country.

He got sprayed so often it became routine.

Don’t worry about it, Ivy said the pilot told him. It won’t hurt you.

Troubled by what he saw, Ivy documented his working conditions day after day. He recently provided hours of time-stamped clips and hundreds of photographs to The Oregonian/OregonLive.

The photos and videos provide damning proof of what can happen deep in Oregon’s forests when no one is looking. The scenes could have come from a Hitchcock movie.

They catch a helicopter pilot repeatedly unleashing hazardous chemicals on Ivy and others.

The clips show drivers moving leaky trucks covered in weed killers past homes, campgrounds and rivers. One driver dips a bucket used to measure atrazine, a chemical that easily pollutes water, into a stream.

In another video, Ivy chronicles how he and a co-worker drove chemical trucks high on a narrow logging road, moving atop eroded earth that appears to have freshly slid away. In others, they pump water out of streams without first notifying the necessary state agencies.

Nothing is more worrisome than the number of times the helicopter sprays over workers. Depending on the chemicals used, workers aren’t allowed to enter spray sites for up to 48 hours. Directly spraying workers is illegal. It’s also illegal to allow chemicals to drift onto workers.

One of the weed killers, Velossa, which is identified in the videos, can cause irreversible eye damage. Another, 2,4-D, causes skin irritation. Breathing even its vapors can cause dizziness.

If such chemicals land on workers’ clothes, they’re supposed to take them off and wash their skin for 15 minutes. Ivy said he was never told that. He wore the same clothes for three days before realizing that might be the reason his skin felt itchy.

Industry representatives insist that timber companies and their contractors follow the rules. They say they adhere to federally approved instructions for each chemical.

Documentation like Ivy’s is rare. Regulators seldom are present during spray operations so there is little independent evidence of what goes on.

An Oregon Department of Forestry monitor was on the site last month at the time the videos show Ivy being sprayed in his truck. An agency spokesman said the observer didn’t see any violations but wouldn’t answer more specific questions.

State agencies investigate after-the-fact complaints, but those are infrequent. In 2014, the Oregon Department of Agriculture investigated six cases about aerial sprays in forestry.

Oregon environmental groups and citizens cite instance after instance in which spraying operations have gone awry, poisoning people and property. They have pressed state agencies and legislators to more tightly regulate industrial spraying. Their demands have gone nowhere.

Lisa Arkin, executive director of the advocacy group Beyond Toxics, said Ivy’s videos as described to her confirm her suspicions about the timber industry’s spraying practices.

“I understand better why they fight tooth and nail against any disclosure or monitoring or advanced notification,” she said. “Because they wouldn’t have the ability to hide this from the public.”

The Oregonian/OregonLive shared three videos with Ted Reiss, timberlands manager for Seneca Jones Timber Co. The Eugene firm hired Applebee Aviation, which did the spraying.

Two clips show herbicides being sprayed directly above Ivy’s crew. In one, a Seneca forester is nearly sprayed.

Reiss said the forester was not sprayed. The company’s observers, Reiss said, “did not observe anything during the applications in question that would substantiate Mr. Ivy’s claims, but we take such accusations seriously and are fully cooperating” with two state investigations.

Mike Applebee, owner of Applebee Aviation, declined to comment. The company employed Ivy for the Douglas County project. The pilot, David McDaniel, didn’t return telephone messages.

Ivy remains outraged at his experience.

He paused repeatedly during interviews, coughing blood into a stained white towel he now carries everywhere.

♦♦♦

Each year, helicopters spray weed killers on more than 165 square miles of Oregon timberland, an area larger than the city of Portland. They do it under the West Coast’s weakest regulations.

The practices are governed by the Agriculture and Forestry departments. They oversee laws that give companies far more discretion to decide how and where to spray than in neighboring states.

Timber companies and helicopter sprayers describe themselves as conscientious stewards of forestlands, following layers of heavy regulation to ensure weed killers are used safely. The chemicals kill and control weeds that sprout after timber is cut, allowing fir seedlings to grow.

Reiss, Seneca Jones’ timberlands manager, emphasized last fall how responsible his company’s spray practices were.

“Our neighbors … feel better about the entire situation knowing that we have a suite of professionals on the ground,” he said.

Seneca owns the Douglas County land where Ivy worked last month.

Industry representatives repeated Reiss’s message at the Legislature, successfully lobbying this session to kill a bill to establish new no-spray buffers around homes and schools.

But buffers would have provided little relief to Ivy and other workers employed by Applebee Aviation.

Seneca foresters were nearby as some spraying operations unfolded. In one video, a Seneca observer is taking a wind reading as a helicopter swoops overhead, spraying just a few feet away from him.

Applebee pilots have sprayed illegally before, Agriculture Department enforcement records show.

An Applebee pilot doused a Hillsboro cyclist with an insecticide in 2010 but was not fined, state records show. The company was found in violation as well, but wasn’t fined either.

Last year, state records show, another Applebee pilot allowed weed killers to drift 400 feet into a neighbor’s front yard during a Seneca Jones spray operation in Douglas County. Several people complained of being sickened. The pilot and the company were each penalized $407.

The pilot could have gotten a bigger fine for driving 36 mph in a 25 mph zone.

Regulators reacted forcefully to Oregon’s highest-profile spray case, a 2013 Curry County incident that produced 20 complaints of illnesses. In that case, an independent pilot repeatedly flew over homes as he moved between two clearcuts, misting people below.

The Agriculture Department suspended that pilot’s spraying license for a year and fined him and his business $10,000 each. Nearly a year later, the sanctions are on hold as the pilot, Steve Owen, contests the matter.

♦♦♦

It started with a job posting on Craigslist.

Applebee Aviation was looking for a truck driver with a special license to haul hazardous materials.

Though he’s a helicopter mechanic, Ivy was qualified. And he needed the money. He’d moved to Oregon from Alaska in late 2014, working part time at the Aurora State Airport to pay his wife’s medical bills.

In early April, he joined an Applebee spraying crew racing against nature’s clock. The workers had a narrow window to use chemicals to prevent weeds from sprouting and competing with Douglas firs, the timber industry’s money crop. Ivy began hauling jet fuel and barrels of weed killers throughout Douglas County.

As the herbicides started getting sprayed on him, Ivy opted to stick out the job for a few weeks. The spraying season was nearly over.

He said the people around him didn’t mind the circumstances. The pilot reassured him. Seneca Jones foresters supervising the sprays didn’t raise concerns, either. They didn’t report anything out of the ordinary to their boss. Another driver told Ivy he’d been sprayed before, too.

In one video, a pilot sprays in conditions that are “way too windy,” the other driver tells Ivy.

Ivy asks in another video about neighbors who complained. “Pansies,” a driver says. Deer in the way? “They all get sprayed,” a forester says.

Ivy is a tough guy, a 45-year-old gym rat with a barrel chest. He assumed he would get used to it.

“I knew I was getting sprayed every day,” Ivy said. “But I thought I was resilient.”

But after just a few days on the crew, he started coughing blood. It came in hacking fits, up from his chest and then down from his sinuses. He broke out in red welts that still dotted his arms and neck two weeks later.

Graphic videos show it all.

Finally, on April 26, he’d had enough. Ivy left and went straight from the job site to the emergency room at Mercy Medical Center in Roseburg.

Hospital staff immediately put him in a decontamination shower, sealed his clothes in a bucket and kept him in an isolation room, equipped with a special ventilation system used when treating highly infectious patients.

A doctor diagnosed him with “acute chemical exposure” and “acute contact dermatitis,” according to medical records Ivy provided to The Oregonian/OregonLive.

Three weeks after leaving, Ivy remains concerned about his future and his health. He has retained two attorneys and filed a worker’s comp claim with Applebee.

His cough persists, coming in wheezy fits. He’s thrown away socks, a pair of shoes, three t-shirts, pants — anything he wore in the field. He keeps waiting to feel normal again. But he doesn’t yet. His lungs keep burning.

“When I was on site I was thinking I’d bounce back really quick,” he said. “But it’s got me a little worried. I can’t breathe right.”

— Rob Davis

rdavis@oregonian.com

503.294.7657