Oregon rivers need modern forestry rules

By Tim Palmer

For The Register-Guard
DEC 11, 2014

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 now raging. 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 forests 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 affects 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 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 and regulations allow cutting on slopes of any steepness — straight-up is not too much, except in specific places where public safety is known to be at risk. They 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 — sometimes practice higher levels of performance. Others don’t. Modernized rules would level the playing field for all.

The effects of industrial logging cause streams to warm beyond acceptable standards of temperature — standards intended not for optimum water quality but to curb the grossest loss of habitat needed by native fish. The federal Environmental Protection Agency has long recommended that Oregon upgrade its regulatory program to protect stream temperatures, as other states have done.

With direct implications to its own forestry 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.

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 muddy runoff that’s headed toward the water from disturbed areas nearby.

This topic is timely because the Board of Forestry is considering upgrading its rules to require wider no-cut streamside buffers.

Other precautions are needed to prevent the spraying of herbicides on homes and people like what sickened 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 met compliance with regulations, according to state officials.

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

Action on the Board of Forestry’s current agenda won’t solve all the problems caused by irresponsible logging on industrial land, but it’s a step in the right direction to safeguard the streams, fish, wildlife, and water that are owned by us all.

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

Southern Oregon/Northern California Coast Coho Recovery Plan finds that timber harvest under the Oregon Forest Practices Act continues to pose a threat to coho

The September 2014 Federal Recovery Plan for the threatened Southern Oregon/ Northern California Coast (SONNC) coho determined that timber harvest continues to pose a serious threat to the coho.  The National Marine Fisheries Service (NMFS) specifically discussed the failure of the Oregon Forest Practices Act to protect the coho.

NMFS also identified revision of the Oregon Forest Practices Act as one of the highest priority recovery actions for almost all SONNC Oregon populations , including Elk River (p. 7-1), Brush Creek (p. 8-1), Mussel Creek (p. 9-1), Lower Rogue River (p. 10-1), Hunter Creek (p. 11-1), Pistol River (p. 12-1), Chetco River (p. 13-1), Illinois River (p. 30-1), Middle Rogue/Applegate (p. 31-1), and Upper Rogue River (p. 32-1).

The following is an excerpt from the plan:

At the time of listing, the Oregon Forest Practices Act (OFPA), modified in 1995 and improved over the previous OFPA, did not have implementing rules that adequately protected coho salmon habitat. In particular, the OFPA did not provide adequate protection for the production and introduction of large wood to medium, small and non-fish-bearing streams. Since the listing of SONCC coho, the Oregon Plan for Salmon and Watersheds (Oregon Executive Order 99-01; 1999) directed the creation of the Forest Practices Advisory Committee to help the Oregon Board of Forestry assess forest practices changes that may be needed to meet state water quality standards and protect and restore salmonids. As of 2003, draft water protection rules and non- regulatory recommendations based on the recommendations of Forest Practices Advisory Committee had been developed, but had not been adopted by the Board of Forestry. A review of OFPA and forest practice rules (IMST 1999) showed the regulations in place may be ineffective at protecting water quality and promoting riparian function and structure, especially in small- and medium-sized streams. In their review of the forest practice rules, the Oregon IMST found that one of the greatest shortcomings of the current rules is that they are dominated by site- and action-specific strategies which, taken together are insufficient for recovering habitat of listed stocks of salmonids (Everest and Reeves 2007). Everest and Reeves (2007) report that current forest practice rules in the Pacific Northwest represent improvements over their preceding rules, but continued change and evolution of the forest practices rules is of vital interest.

Though significant improvements have been made to the current rule package, the Oregon Forest Practice Rules represent the least conservative forest practice regulations administered by the state governments within the SONCC coho salmon ESU. Some riparian areas may be protected by narrow, no-harvest zones; however, the stands located upslope of the no-harvest zones could be subject to intense harvest, leading to diminished riparian function and cumulative effects to anadromous salmonid habitat. In a 2010 status review of Oregon Coast (OC) coho salmon, NMFS concluded that the Oregon Forest Practices Act does not adequately protect OC coho habitat in all circumstances. In particular, disagreements persist regarding: (1) whether the widths of riparian management areas (RMAs) are sufficient to fully protect riparian functions and stream habitats; (2) whether operations allowed within RMAs will degrade stream habitats; (3) operations on high-risk landslide sites; and (4) watershed-scale effects. 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 under the Oregon Forest Practices Act (NMFS 2009). 

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.
(discussing Oregon Forest Practices in Chapters 1 through 6 at pages 3-56 and 3-57)

Testimony Before the Board of Forestry, November 5, 2014

  Download the Testimony

BEFORE THE OREGON BOARD OF FORESTRY
Statement of Mary Scurlock, Oregon Stream Protection Coalition
Agenda Item 7: Informational Update on Riparian Rule Analysis
5 November 2014

My name is Mary Scurlock and I represent 21 fishing and conservation groups comprising the Oregon Stream Protection Coalition. The intent of my remarks today is to add some further detail to the staff update about the issues under discussion with stakeholders from our perspective.

New rule timeline. The new rule timeline has pushed further Board decisions out until March and April, with July slated for final rule adoption. In our view it is imperative that this timeline be adhered to and that rule completion be a Board priority. As you are well aware, a federal disapproval of Oregon’s coastal program is pending and there is currently no policy change that the state can hold up to demonstrate that it is addressing any of the problems identified by the NOAA and EPA. There is also increased public scrutiny on Oregon’s logging rules as a result of the recent Oregonian expose describing weak regulation of forest chemicals and indicting current rules on public health, environmental protection and public process.

Ongoing public outreach. We appreciate the Department’s efforts to set aside adequate time and resources for stakeholder input. I and other members of my coalition will continue to be actively engaged as staff recommendations are developed on new rule prescriptions as well as where the new rule prescriptions should apply.

Georegions Decision Set for March 4: The conservation groups I represent continue to oppose the geographic limitation of this rulemaking. The basis for this view is that in every georegion studied by RipStream the current rules were found lacking; therefore, the only reasonable assumption the Board can make is that the current retention requirements in the other georegions are also insufficient to meet the PCW – an assumption that can be validated using available information if the Department is instructed to gather it.

In particular, there is a strong sense in the conservation community that the Siskiyou Region must be included in a policy change due to the high aquatic resource values at stake and because this region is part of Oregon’s Coastal Zone, within which policy changes have been specifically identified as needed to meet the requirements of federal coastal water pollution control statutes. Likewise, the recently finalized federal recovery plan for Southern Oregon/Northern California Coastal Coho is quite clear about the need for improvements to small and medium stream protections on private forestlands.

We reiterate earlier comments that the exclusion of any region from this rulemaking must be accompanied by a clear plan for how the rules in those regions will be evaluated and amended with respect to the PCW on a reasonable timeline.

Stream Reach Extent Decision Set for April. The Board’s decision on stream reach-scale designation for additional prescriptions is not now slated to occur until April. This decision involves drilling down on a number of technical issues that bear on stream classification rules and guidance, and how the rules will be implemented on the ground. Our overall recommendation to the Board at this time is that ODFW’s expertise should be heavily relied upon. Our specific concerns include:

1. Regulatory use of maps. ODFW fish distribution maps are the best available information and we support its use as a starting point for making reach level decisions. It will be important to clarify how these maps will be used and the process by which they will be updated.

2. All fish not some fish. The current rules are largely tiered to fish versus nonfish streams. We strongly support application of the new rule to all streams that meet the current criteria for a fishbearing stream. At present the Department is contemplating a policy change that would tier prescriptions to stream reaches that are or could be used by specific fish species, i.e. salmon, steelhead and bull trout only, because of how the PCW is written, but the same level of protection is needed on all fishbearing reaches. We will be interested in the specifics of the implementation mechanisms – presumably habitat criteria — that will be used to determine the end of SSBT use. It seems likely that a full discourse around this issue will require scrutiny of the current rule guidance pertaining to physical habitat characteristics that may be considered incompatible with salmon, steelhead or bull trout use, and consideration of whether aspects of this guidance will need to be elevated to rule. If management prescriptions are going to vary markedly between types of fish bearing reaches, the ecological basis for the criteria used to distinguish these reaches will come into play. Likewise, the conditions under which fish presence surveys can be used to override a fishbearing designation will also require vetting because this process will assume greater regulatory significance.

3. If SSBT only, include upstream reaches as default. The coalition is concerned that this rule should deal appropriately with uncertainty by giving the benefit of the doubt to the resource. For example, the increased stream protections should be presumed to apply to all fish streams upstream of Salmon, Steelhead and Bull Trout segments unless a physical barrier has been field verified and it can be demonstrated that warming of upstream reaches will not lead to downstream warming in violation of the PCW.

Prescription Elements: It also appears that there are stakeholder differences of opinion on several items pertaining to prescription elements, including:

1. Buffer delineation methods. In our view, stream buffers should be measured based on horizontal, not slope distance — which is particularly important on steeper slopes where it makes the most difference. We note that this method is currently used on Oregon’s state forestlands.

2. Whether to change which trees can contribute to basal area targets. We expect that there will be a need for further discussion about the implications of changing the “countability” of trees to meet new targets to include smaller trees (e.g. 6 inches from 11 inches) and whether to include hardwoods as well as conifers.

We expect these and other issues will be the subject of lively stakeholder discussion in the coming months.

Oregonian Exposé on Forest Chemicals: Lax Oregon Logging Rules Fail to Protect People as well as Fish and Water Quality

A major two-part investigative piece finds that Oregon’s regulations do less than neighboring states’ to protect people and the environment from herbicides.  This is a familiar refrain for the Oregon Stream Protection Coalition, whose members are trying to convince the  Board of Forestry to require that more trees be left near streams to prevent stream warming, regulate sediment, and provide the woody and other organic material needed to build healthy fish habitat and protect streamside soils.

Oregon agencies blew off complaint, red flags before helicopter sprayed weed killer on residents

In Oregon, helicopters spray weed killers near people under West Coast’s weakest protections 

Scientific journal articles have also addressed the differences between Oregon Forest Practices Act rules and those in Washington, California, and in the federal Northwest Forest Plan (NWFP). Oregon’s rules are less protective of streams than those of Washington and the NWFP, and, to a lesser extent, California’s forest practices rules.

Specifically regarding Washington State, Oregon’s forest practices regulations require significantly less protection for streams than do their counterparts in Washington in several key respects: 1) the buffer size next to the stream; 2) how much vegetation is allowed to be removed within the stream buffer (i.e. retention requirements); 3) how much smaller streams, especially non fish-bearing smaller streams, are protected; 4) identification and protection of unstable slopes; and 5) road construction and maintenance rules to limit the adverse impacts of roads, and rules to restore old and degraded roads.

The following three articles include illustrative comparisons between the states as well as comparisons with the federal Northwest Forest Plan:

Cashore, Benjamin and Graeme Auld. 2003.
British Columbia’s Environmental Forestry Policy Record in Perspective.
Journal of Forestry. December: 42-47.

Olson, D.H., P.D. Anderson, C.A. Frissell, H.H. Welsh, Jr., and D.F. Bradford. 2007.
Biodiversity management approaches for stream-riparian areas: Perspectives for Pacific Northwest headwater forests, microclimates and amphibians.
Forest Ecology and Management, 246: 81-107.

H.H. Welsh, Jr. 2011.
Frogs, Fish and Forestry: An Integrated Watershed Network Paradigm Conserves Biodiversity and Ecological Services
Diversity, 3, 503-530.

 

 

In the news: Oregon forestry board moves to protect cool water

The Associated Press
Posted in The Seattle Times
and Capital Press

SALEM, Ore. — The Oregon Board of Forestry has voted unanimously to keep moving forward on developing rules to making sure logging sites leave enough trees standing along salmon streams to keep the water shaded and cool.

The vote Wednesday in Salem directs the Department of Forestry to finish developing various alternatives – including voluntary and mandatory measures — to assure the cool- water standard set by the state Environmental Quality Commission is met.

The board decided not to ask the Environmental Quality Commission to consider setting a more lenient standard — a direction that had been favored by some in the timber industry, and opposed by salmon advocates.

The issue was raised by a 2011 study that found temperatures were getting warmer in salmon streams on state-regulated timberlands in the Coast Range.

Oregon Board of Forestry Votes to Move Forward on Riparian Rulemaking

On September 3, 2014, the Oregon Board of Forestry unanimously voted to move forward with the riparian rule analysis needed for rules that would meet the  cold water criterion of Oregon’s stream temperature standard.  The Board of Forestry accepted the Oregon Department of Forestry’s recommendation to the Board of Forestry to accept the June 23, 2014 workshop summary and to proceed with the development of alternative management prescriptions. The final decision of the board was:

“The Board adopted the following pathway forward for the rule analysis process:

  1. The Board directed the department to continue with the current rule analysis, and in conjunction with the Regional Forest Practice Committees and stakeholders, to develop prescriptions for a new Riparian Protection Rule designed to meet the Protecting Cold Water (PCW) criterion to the Maximum Extent Practicable (MEP) and facilitate flexibility in harvest approaches through consideration of regulatory measures, voluntary approaches or a combination thereof, including:

    1. Variable retention;
    2. No-cut buffer rule alternatives; and
    3. Appropriate criteria for a Plan for Alternate Practice.

  2. The Board directed the department, in conjunction with the Regional Forest Practice Committees and stakeholders, to continue analysis of a) Geographic Regions in western Oregon to which the rule should apply, and b) to which stream segments (i.e., only those streams with salmon, steelhead, or bull trout present; the entire network of small and medium fish streams; or something in between) the rule should apply.
  3. The Board directed the department to develop preliminary economic and ecological information related to each prescription for the rule alternatives.
  4. The Board directed the department to work with the Board of Forestry/Environmental Quality Commission liaison process to communicate the Board’s concerns regarding the sensitivity of small and medium fish streams relative to the Protecting Cold Water (PCW) criterion and the potential impacts on forestland.  Work with the liaison process to help develop understanding, acceptance and support for the Board’s approach for addressing the PCW criterion.
  5. The Board directed the department to consider impacts of proposed prescriptions on large woody debris (LWD) recruitment.

The Board received the workshop summary (Attachment 1) as adequately documenting key points from presentations and associated discussions at the June 23, 2014 Riparian Rule Analysis Workshop.”

The Department of Forestry’s recommendation was part of the materials for the Board’s Sep. 3 board meeting.  View the full report. Read Mary Scurlock’s testimony to the Board of Forestry urging the Board to accept  the Department staff’s recommendation.

Testimony Before the Board of Forestry, Sept. 3, 2014

  Download the Testimony

 

BEFORE THE OREGON BOARD OF FORESTRY
Statement of Mary Scurlock

Re:  Agenda Item Number 9 — Water Quality Protection and Riparian Rule Analysis
3 September 2014
Salem, Oregon

State Forester Decker, Chair Imeson and members of the Board, thank you for considering my input today. My name is Mary Scurlock and I am here on behalf of the 22 organizations of the Oregon Stream Protection Coalition.  We strongly urge you to accept Department staff’s recommendation to accept the June 23, 2014 workshop summary and direct the Department to present the Board with a rule alternative or alternatives (though not specific rule language) in November that meets the Protecting Coldwater Criterion of Oregon’s stream temperature standard.  The rule alternatives would be presented with further recommendations about the geographic regions and stream segments to which they would apply and with preliminary economic analysis related to buffer prescriptions.  You would also be presented in November with an evaluation of how the proposed prescriptions would bear on large wood recruitment and voluntary measures for large wood.

In supporting the staff’s recommendation, we are urging you to reject other options that have been described by staff and promoted by some members of the Board and other stakeholders.  Specifically:

  • The Board should not formally include large wood recruitment as a rule objective.  As much as my community wishes that this rulemaking could have been more holistic and designed to address the serious deficiencies of large wood in Oregon’s streams as well as issues related to road sediment and management impacts on mass wasting regimes, we supported the narrow scope of this rule process because of the clear performance objective the Protecting Coldwater Criterion provides.   We agree with the Department that expanding the scope of this effort now would delay policy change for months or years.
  • The Board should not revisit prior determinations in this rule process, all of which had a rational basis, were made through a transparent public process with stakeholder input and none of which are undermined by significant new information or changed circumstances.
  • The Board should not request the Environmental Quality Commission to change the Protecting Coldwater Criterion.  The existing statutory structure creates an expectation that the Board will defer to the EQC in matters related to the substance of water quality standards, particularly one for which there is such strong support at both the state and federal levels — as the June 23 workshop made clear.  In our view, a formal request by the Board to the EQC for a water quality standards rule change should be reserved for extraordinary circumstances where there is no rational policy, legal or ecological basis for such a rule.  Such is not the case here.
  • The Board should not focus now on issues that are not directly related to the achievement of its primary objective, which is to develop rules to meet the Protecting Coldwater Criterion on small and medium fishbearing streams.  It is simply not the right time to take up whether and how the location of temperature-impaired streams (“303(d)” streams with or without TMDLs), or the location of stream segments determined by other processes to be of high or low ecological value, or the location of reaches that may have particular sensitivities or insensitivities to management might be relevant.  The Board needs to focus on determining what practices meet the standard and where the standard applies.

We hope you will consider the following in your deliberations:

  • Oregon’s salmon, steelhead and bull trout have waited long enough: there has been uncertainty around the adequacy of the forest practice rules to prevent harvest-related stream warming since the late 1990s, but rule change was deferred pending the completion of the RipStream study, approximately 2002-2010.  Now almost three years of work by the Board and Department have been dedicated to this rule analysis since the “degradation finding” in January 2012 on the basis of RipStream — including an extensive science review that validates RipStream as among the best available scientific studies on the subject.
  • There are more decisions ahead.  Continuing with the rule process laid out by the Department does not tie the Board’s hands to shape the final outcome. There are still several key decisions ahead that are within the Board’s discretion, most notably including the specific rule prescriptions that will be adopted, their geographic extent, and the appropriate role of voluntary measures.
  • Adaptive management without policy change is a broken promise. As a matter of public process, this Board’s failure to pursue meaningful policy change after an evidence-based deliberative process that began over a decade ago would be perceived by my community as an extreme institutional failure that demands recourse through whatever political, legislative, and legal means available.  We would prefer to work as stakeholders within a successful adaptive management program.

 

New Media Coverage: Oregon forestry board may increase tree buffers along salmon streams, first time since 1994

September 2, 2014
AP Story
Covered in the Oregonian (and other media outlets listed at the end of the story)

The Oregon Department of Forestry is recommending the state analyze the different logging prescriptions that would be needed to meet cool water protection standards for small- and medium-sized streams with salmon, steelhead and bull trout. (The Oregonian/Doug Beghtel)
The Oregon Department of Forestry is recommending the state analyze the different logging prescriptions that would be needed to meet cool water protection standards for small- and medium-sized streams with salmon, steelhead and bull trout. (The Oregonian/Doug Beghtel)

Oregon’s state Board of Forestry is working on balancing a healthy timber industry with healthy salmon runs.

On Wednesday, the board votes on taking the next step in developing rules governing how many trees must be left standing along streams to keep the water shaded and cool enough for salmon to survive.

It would be the first change to the riparian protections of the Oregon Forest Practices Act since 1994.

The question was raised by a 2011 study that found temperatures were getting warmer in salmon streams on state-regulated timberlands in the Coast Range.

The Department of Forestry is recommending the board go forward with analyzing the different logging prescriptions that would be needed to meet the cool water protection standards for small- and medium-sized streams with salmon, steelhead and bull trout, and their economic impact.

A final decision is months away and will take into account whether the changes create too much of a hardship on the timber industry.

Mary Scurlock of the Oregon Stream Protection Coalition says the study makes it clear that Oregon will have to start leaving more trees standing along streams to meet the cool water standard set by the state Environmental Quality Commissions, and some form of financial assistance for small landowners may be needed to soften the blow.

She added that Washington state logging rules use the same cold water protection standards set in Oregon, and the timber industry is viable there.

In testimony to the board over the past year, representatives of the timber industry have urged approaching the Environmental Quality Commission to change the cool water standards — a position opposed by the Department of Forestry — and raised questions about how long-lasting the effects are of logging on stream temperatures.

Katrina McNitt, president of the Oregon Forest Industry Council, said while the study showed water temperatures rose after logging, they never exceeded the standard for protecting salmon.

The RipStream study by the department and Oregon State University looked at 33 stream sites on state and private lands in the Coast Range dating to 2002. The study found an average increase of 1.26 degrees Fahrenheit after logging on private lands. There was no increase on state timberlands, where more trees are left standing along streams. The temperature increases were prompted by less shade thrown on the water by trees.

— The Associated Press

 Other media outlets that published the story: The Bulletin (Bend)

The Daily Courier (Grants Pass)

The Columbian (Vancouver)

Albany Democrat-Herald

Herald and News (Klamath Falls)

SFGate

WRAL.com (Raleigh, Durham, Fayetteville)

Oregon Stream Protection Coalition – Issue Brief #1

Oregon Stream Protection Coalition – Issue Brief #1 

August 2014

Will Oregon’s Board of Forestry propose new logging rules to meet coldwater protection standards on private timberlands? (Or will it defer to the timber lobby?)

BACKGROUND

  • 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.
  • 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.
  • Oregon’s logging rules governing timber harvest on private lands provide significantly less stream protection than those in Washington and California.
  • The need to increase stream protection from logging on private lands has long been acknowledged by the state’s own science team and by a host of federal agencies in connection with Endangered Species Act salmon listings, water quality standards compliance under the Clean Water Act, and coastal water pollution control under the Coastal Zone Management Act.
  • Even so, 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.
  • Conservation and fishing groups are alarmed that the most significant change to Oregon’s forest practices rules in over 20 years could stall out if the Board of Forestry doesn’t vote on September 3 to stay the course on its riparian protection rulemaking.

WHY IS THE BOARD CONTEMPLATING NEW RULES NOW?

  • In January 2012, the Board of Forestry determined, on the basis of a study called “RipStream,” that current rules allow removal of too many trees in the riparian buffer area. This finding applies to small and medium salmon-bearing streams that are warmed in violation of a water quality standard called the “Protecting Coldwater Criterion” (PCW). The PCW is a Department of Environmental Quality (DEQ) standard that is intended to protect cold streams from heating up and violating DEQ’s temperature standards. The finding triggered the Board’s process to develop new rules to prevent violations of the PCW.
  • The Board has made several public decisions in support of a rule change, 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. Early results indicate 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 an 85 foot no-cut buffer.
  • As the scope of needed improvements has become more clear, the timber industry has responded by agitating for the Board to: (1) rescind its 2012 finding, and (2) question the need for the PCW standard itself – a matter well outside the Board’s authority because it is under the jurisdiction of the DEQ’s governing body, the Environmental Quality Commission .
  • The result? A process originally projected to last one year still has not reached the point of considering rule alternatives after almost three years.

WHAT HAPPENS IF THE BOARD FAILS TO ACT?

  • This rule change is important:
    • Ecologically because there are over 10 million acres of private timberland regulated by Oregon’s Forest Practice Rules, including many streams that are habitat for temperature-sensitive salmon, steelhead and bull trout;
    • Fiscally because over $2 million annually in federal funding to Oregon relies on logging rule improvements and Oregon’s multi-million dollar fishing industry relies on clean water for fish;
    • Socio-politically because the Board’s ability to respond to scientific evidence and meet its obligations to protect Oregon’s natural resources, in spite of opposition from the regulated community, has not been demonstrated; and
    • Legally, because failure to revise logging practices likely will motivate litigation and legislative changes to the Board’s authority.
  • 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 stated their intent to “disapprove” 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 will lead to the loss of over $2 million in federal funds annually to DEQ and the Department of Land Conservation and Development.
  • Oregon’s Forest Practices Act requires that the Board’s logging rules meet water quality standards developed by DEQ. 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 which found that, on average, logging on under current rules caused stream temperatures to increase by 0.7˚ C — even though this average 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.

________________________________________________

[1]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.

[1]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).

[1] 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)

[1] 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).

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

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

[1] 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 temperaturesmay 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

[1] 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).

[1] 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).

[1]2010 Oregonian Article on Coastal Zone Lawsuit

[1]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).

[1]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.

 

 

error: Content is protected !!