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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

Jefferson Public Radio Story: Bigger Buffers for Fish? Family Foresters Nervously Eye Possible New Logging Rules

May 12, 2015
by Liam Moriarty

Click here to read this story and listen to it on Jefferson Public Radio.

Bill Arsenault has owned Paradise Creek Ranch since 1971 with his wife Joan. He's done a lot of work to restore the stream after a previous owner's cattle operation damaged the banks and water quality. Credit Liam Moriarty/JPR
Bill Arsenault has owned Paradise Creek Ranch since 1971 with his wife Joan. He’s done a lot of work to restore the stream after a previous owner’s cattle operation damaged the banks and water quality.
Credit Liam Moriarty/JPR

The federal government has been telling Oregon for over a decade that its rules to protect threatened coastal salmon are not up to snuff. Now, the state is faced with a loss of federal dollars unless it gets with the program.

In response, the Oregon Board of Forestry is weighing whether to require timberland owners to leave more trees standing along streams to better protect fish habitat. And that’s got owners of small timber lands especially worried.

In Oregon, timber holdings under 5,000 acres are often described as “family forests,” as opposed to the large commercial forest lands owned by timber giants such as Plum Creek and Weyerhauser. And while the big guys are concerned about the possibility of new rules mandating larger forested buffers along streams, it’s the family foresters who are doing the most sweating.

Bill Arsenault is standing along a lush stream bank near Elkton in Douglas County.

“This is Paradise Creek,” he says. “It drains the watershed here, about 12,000 acres.”

Bill and his wife Joan have owned this 277 acre parcel since 1971.

“It’s a large fish­bearing stream,” Arsenault says. “We have just about everybody in here; chinook, coho, steelhead and then native cutthroat.”

Paradise Creek runs through Bill and Joan Arsenault's 277-acre ranch and tree farm near Elkton, Oregon. Note the abundant trees and greenery along the banks, and the woody debris in the creek, all things that promote healthy salmon habitat. Credit Liam Moriarty/JPR
Paradise Creek runs through Bill and Joan Arsenault’s 277-acre ranch and tree farm near Elkton, Oregon. Note the abundant trees and greenery along the banks, and the woody debris in the creek, all things that promote healthy salmon habitat.
Credit Liam Moriarty/JPR

It’s the prospect of rules requiring larger buffers alongside streams ­­ what’s called the “riparian zone” – that has small timberland owners such as Bill Arsenault worried. Arsenault says while relatively little of his property would be impacted by such a rule, there are family forest owners for whom as much as 25 percent of their land is already set aside for riparian protection.

“So, taking more property from us has real meaning,” he says. “Society expects us to foot the whole bill. There’s no compensation, even partial, for having taken our lands.”

Wider buffers means leaving more valuable timber standing and small timber owners say such a rule would hit them disproportionately hard. At a meeting of the Oregon Board of Forestry in April, Rick Barnes, a Roseburg-based forestry consultant who owns timberlands of his own, explained that’s because family forests tend to be at lower elevations.

“Our streams are, on the average, larger, have more fish-bearing streams as a percentage and have a unique perspective and exposure to the riparian rules,” he said.

Barnes is also a member of the Committee For Family Forestlands. That’s a group set up by the Board of Forestry to advise it on issues related to family forests. Barnes cautioned the board in April against adding to the regulatory burden.

“The family forestland owners already have significant challenges in making activelymanaged forest economically viable,” he said. “Small forests that do not return an economic benefit are more likely to be converted to other uses and subject to fragmentation.”

The thing is, salmon, steelhead trout and other fish need cold water to thrive. If logging removes the trees near a stream, the lack of shade can make that water warmer. Is that a problem in Oregon? Mary Scurlock, who represents the Oregon Stream Protection Coalition, says there’s little doubt that it is.

“Oregon has in hand very clear monitoring evidence that we are not protecting cold water streams from harvest­related stream warming, in violation of the state’s water quality criteria,” she says.

The Oregon Stream Protection Coalition is a group of environmental and trade organizations that seeks stricter logging rules to protect fish habitat. Scurlock points to a study conducted by the Oregon Department of Forestry that found many private forestlands logged according to current rules still exceeded temperature standards set to protect fish.

As is often the case in environmental issues, the science is in dispute. Federal officials and environmentalists say there’s a clear need to leave more trees standing to keep steams cooler for the fish. But the timber folks say the studies leave important questions unanswered.

In Part Two of this story, we’ll look at what the science does – and doesn’t – say.

Oregon Board of Forestry Testimony, April 22, 2015

BEFORE THE OREGON BOARD OF FORESTRY
Statement of Mary Scurlock, Oregon Stream Protection Coalition
Regarding Agenda Item 2: Methods for Riparian Rule Analysis
Sunriver, Oregon
22 April 2015

My name is Mary Scurlock, and I represent the Oregon Stream Protection Coalition’s 21 fishing industry and conservation member groups united in support of stronger, science-­based riparian protection for streams on Oregon’s over 10.6 million acres of private forestland. We stand united around the common belief that a stronger regulatory baseline is needed to ensure the long-­term health of freshwater ecosystems and the multitude of economic benefits they support, including but not limited to saw timber and wood fiber.

  • The Decision Analysis Package coming to the Board, as outlined by the Department in the pre-­meeting materials, promises to provide an adequate basis for the Board to select proposed rule prescriptions on June 3

The information now being prepared by the Department for delivery to the Board ahead of the June 3 meeting falls into main four categories

  1. Predictive model-­generated information about how proposed prescriptions perform to prevent stream warming, and other information relevant to prescription evaluation where the predictive model is informative. This is the threshold information that the Board will use to determine whether a prescription is effective enough to be considered capable of “meeting” the Board’s objective for this rule process and its legal duty to promulgate rules that meet the water quality criteria.
  2. Regulatory and Economic Impacts on Landowners assessed using both GIS generated information about how the various prescriptions affect the acreage available to landowners for harvest and estimates about the expected change in land and timber values. This information is relevant to how the Board will determine which of the alternatives deemed effective are “least burdensome” to the regulated community.
  3.  Ecological Benefit information other than protection from shade-­based stream warming, which should include how prescriptions contribute to large wood recruitment objectives, sediment and nutrient retention, expected fish response, and other benefits. This information is relevant to how the chosen rule alternative meets the Board’s natural resource objectives other than those directly related to water quality criteria for stream temperature based on streamside shade.
  4.  Geographic Extent Information. This information simply illustrates how the various prescriptions would change the status quo in the different ODF geographic regions depending on whether they apply to all small and medium fish streams, or just to salmon, steelhead and bull trout reaches. This relates to how the Board chooses to geographically constrain the reach of the resource degradation finding it made without reference to geography in January of 2012.

Although we have a few comments to make about each of these categories of information, our overall evaluation is that the Board will have an adequate informational basis upon which to make a decision on prescriptions that should go forward to proposed rule language on June 3. 

We make this finding on our belief that the predictive model is a robust and credible tool for evaluating prescription effectiveness to prevent harvest that allows undesirable shade reductions and consequent solar warming as required by applicable EQC-­ and EPA-­approved water quality criteria limiting such warming. This is the key piece of information that the Board needs to consider because it goes to the threshold determination of whether a particular prescription is adequate to meet the Board’s objective of preventing harvest related stream warming as required by DEQ water quality criteria. All of the other information is subordinate to the Board’s determination of prescription effectiveness.

For example, the relevance of economic impact information at this point is to allow the Board to select the “least burdensome” alternative or alternatives from among those determined to be adequate to meet the water quality goal according to the predictive model and other evaluative information. The information prepared by the ODF is more than adequate to do this job. It will not, however, be adequate to serve as the sole source of scientific input to comprehensive economic analysis required prior to adoption of a final administrative rule. Improved availability of certain information about how streamside prescriptions contribute to other ecological benefits besides those related to preventing shade loss and stream warming is very important because prescriptions designed to meet temperature criteria will also directly and indirectly improve non-­shade related riparian functions.

      • ADDITIONAL COMMENTS ON RULE ANALYSIS INFORMATION

The Model and other information about prescription effectiveness

It is our assessment that the scientific modeling developed by ODF to allow the Board to evaluate the relationship between streamside logging, stream shade, and stream temperature response represents state-­of-­the art science. To our knowledge the Board has never before been presented with such a rigorous scientific analysis to inform a rulemaking provision for resource protection. This body of work has been carefully developed over many years, grounded and calibrated in an extensive base of field data and tailored to address very specific questions and prescriptive scenarios, and subject to peer review at several junctures. While our experts might quibble with certain interpretations of data near the margins of the analytic findings, we fully support the crux of this analysis and its findings.

• Ecological Benefits Assessment

We have three comments on the ecological benefits analysis.

First, it is important to acknowledge that the prevention of stream warming is itself an “ecological benefit” that was evaluated using the predictive model and other scientific information in a separate exercise, and that the large wood, fish response and other functions analysis adds to that important benefit.

Second, although we reserve judgment on this specific analysis of large wood, fish response and other functions until we see the details, the proposed methods seem likely to be informative on their face, and should provide valuable context for the June decision. Even without seeing the results of a quantitative analysis, we are certain that a proposed rule change that expands streamside leave areas and reduced logging and equipment operations within them will confer substantial and measurable benefit to other important water protection functions. For example, these benefits include improved sediment retention, nutrient retention, large wood recruitment, flood abatement, protection of wetlands and near-­surface groundwater conditions and processes , and riparian wildlife habitat.

Third, while acknowledgement of and some attempt to quantify the multitude of ecological benefits from increased riparian protection is important to an informed decision process this should not be the end of the benefits analysis. We emphatically note that it will be very important for ODF to include estimates of the economic value of these manifold environmental benefits as part of its comprehensive economic analysis.

• Geographic Extent of Prescriptions

We have two comments here.

First, we urge the Board not to conflate its decisions about prescription effectiveness with decisions about either geographic or stream extent. The effectiveness of prescriptions should be the primary determinant of which prescriptions are chosen. Whether a region or set of stream reaches are included should be based on the Board’s findings about which regions and stream reaches are not currently receiving prescriptions that are adequately likely to meet the applicable water quality criteria.

Second, as we have previously indicated to the Board we are not satisfied that this rule process has adequately acknowledged the clear implications of the RipStream study for streams subject to warming limitations as part of watershed-­wide temperature TMDLs.
While we recognize that including all stream reaches to which Temperature TMDLs apply would exceed the “outer limit” of the potential footprint for this rule (all small and medium
fish streams) we believe that this information is nonetheless relevant for the following reasons:

  •  In addition to reaches subject to the Protecting Coldwater Criterion, there is an existing legal duty to prevent stream warming on most if not all other streams by virtue of valid existing TMDLs. Under Oregon’s water quality standards, once a TMDL is completed, its provisions override the PCW criterion. The Board’s failure to acknowledge its duty to ensure that the forest practices rules meet TMDLs as well as the PCW ignores the plain language of the water quality standards, and is not an acceptable basis for restricting the scope of new rules. We think it is important that the Board -­-­ and EQC -­-­ both recognize that:
  •  the same temperature standards apply to all perennial streams, at a minimum, and do not distinguish between SSBT, fish-­bearing, and non-­fish bearing streams;
  •  the same temperature standards apply to all streams, regardless of whether they are impaired or not impaired; and
  • the allowable warming under TMDLs is no longer just the PCW’s 0.3˚ C, but becomes between zero and 0.1˚ which reflects the applicable human use allowance.

RipStream clearly demonstrates we are not meeting our obligations under these TMDLs (and any that are likely to be developed in the future for that matter). The study results demonstrate significant stream warming under current rules on small and medium streams -­-­ not just to salmon, steelhead and bull trout-­bearing streams.

The Board is considering applying increased buffers only to “Salmon Steelhead and Bull Trout” bearing reaches, which would protect very few of the stream miles where warming limitations equivalent to or less than the PCW actually apply. We urge the Board to consider all information that illustrates the actual scope of the various rule options relative to all the streams in need of protection. Please work to ensure that a fully informed decision is made by the Board in June ,and that you have a full understanding of the stream warming limitations set by temperature TMDLs as well as the Protecting Coldwater Criterion.

  • PUTTING THIS RULEMAKING IN CONTEXT: Freshwater habitat is not recovered and drought conditions and climate change heighten stream-­dwelling species vulnerability to land use impacts. There is a pressing need for immediate policy change on Oregon forest practices.
  •  Just because Oregon Coast Coho Salmon populations have increased in recent years (on average, in aggregate) doesn’t prove that freshwater habitat is doing fine and changes in land use practices aren’t needed. In the public discourse over the last few months, we have run across several misconceptions about the need for new rules. One of them is evident in the letter sent to the Board by the Committee for Family Forestlands: that recent increases in coastal coho spawner abundance demonstrate that all is well with salmon habitat and forest land use practices. This conclusion is not supported.

First, I am advised by NOAA Fisheries and the record of the coho listing that the initial ESA listing was primarily driven by trends in production of salmon, i.e. by declines in recruits (the number of juveniles that survive to maturity), not spawners. See e.g. Lawson, 1993. So a more relevant graph to consult would be one based on ODFW’s combined spawner & harvest numbers, below.

C lick here to download the testimony and see the graph

Second, while both spawners and recruits have increased since the 1990s when coho were originally listed, this is still too short of a time period to reflect the result of changes in forest practices. It will take decades more for streams and the fish inhabiting them to respond to the changes in riparian management from the 1994 rules. It is not appropriate to rely on the self-­serving speculation of a special interest group in these matters. Instead, we need to rely on our extensive scientific knowledge of how ongoing forest practices impact habitat characteristics known to limit fish survival.

Third, the prevailing opinion of experts on this fishery is that the most likely causes for the recent upticks are: reduced harvest, short-­term variation in marine and freshwater climate, greatly reduced hatchery coho releases, and — in some local streams only— directed habitat restoration efforts. This uptick seems unlikely to continue given the low snowpack and general drought conditions now facing much of the west, coupled with the expectation of poor ocean conditions. (See attached article in Science by R. Service, 2015). Fish biologists are now predicting at least a 25% smaller return rate by 2016. (Pers. Comm. B. Rees, Association of NW Steelheaders). This convergence of highly adverse circumstances is likely reduce coho salmon survival for at least the next 3 years, and well beyond that should the adverse conditions prevail.

      •  Time for A Change: status quo is not acceptable

The conservation community and the interested public it represents are understandably frustrated with Oregon’s slow rate of progress toward updating its forest practices rules to meet water quality standards. Our stream protection standards are a fraction of those
provided by our neighboring states, both of which sustain viable timber industries. I provide here two chart that illustrates this gap for both fish streams and nonfish streams when Oregon’s rules are compared to those in Washington and California. (We note that
the Board is admonished by ORS 527.765(1)(c ) to consider “[a]ppropriate practices employed by other forest managers” in developing its own management practices. These clearly include at least those practices employed by private forest managers in other
western states).

Click here to view the full testimony including charts, photographs, and Science article.

Oregon Stream Protection Coalition Testifies at Environmental Quality Commission about rulemaking to protect streams

On April 16, Mary Scurlock of the Oregon Stream Protection Coalition presented the following testimony to Oregon’s Environmental Quality Commission:

16 April 2015

BEFORE THE ENVIRONMENTAL QUALITY COMMISSION

Statement of Mary Scurlock, Oregon Stream Protection Coalition
Regarding Board of Forestry’s Riparian Rulemaking

My name is Mary Scurlock, and I represent the Oregon Stream Protection Coalition’s 21 groups united in support of stronger stream protection on Oregon’s over 10.6 million acres of private forestland.

As you know, the Board of Forestry is slated to make a decision about which policy alternatives for riparian protection on private forest streams it will send to formal rulemaking on June 3, with a focus on small and medium streams. We urge the Commission to be an active and demanding partner in this effort, and to do everything in its power to ensure an outcome at the Board that results in forest practices rules that are truly capable of meeting applicable water quality standards for stream temperature on as many of the streams in need of such measures as possible.

  • The Department should be advocating for increased protection on all small and medium streams where stream warming limits apply under currently applicable water quality criteria

The ODF rule process has been so focused on the Protecting Coldwater Criterion as it is currently written that it does not adequately acknowledge the clear implications of the RipStream study for streams subject to warming limitations as part of watershed-wide temperature Total Maximum Daily Loads (TMDLs). We have three points :

  1. In addition to the Protecting Coldwater Criterion, there is an existing legal duty to prevent stream warming on most if not all other fish streams by virtue of valid existing TMDLs. We hope that this Commission agrees that under Oregon’s water quality standards, once a TMDL is completed, its provisions override the PCW criterion. The Board’s failure to acknowledge its duty to ensure that the forest practices rules meet TMDLs as well as the PCW ignores the plain language of the water quality standards, and is not an acceptable basis for restricting the scope of new rules. We think it is important that the Commission and the Board both recognize that:
  • the same temperature standards apply to all perennial streams, at a minimum, and do not distinguish between Salmon, Steelhead and Bull Trout (SSBT), fish-bearing, and non-fish bearing streams;
  • the same temperature standards apply to all streams, regardless of whether they are impaired or not impaired; and
  • the allowable warming under TMDLs is no longer just the PCW’s 0.3° C, but becomes between zero and 0.1° which reflects the applicable human use allowance.
  1. RipStream clearly demonstrates we are not meeting our obligations under these TMDLs (and any that are likely to be developed in the future for that matter). Compelling, peer-reviewed study results demonstrate significant stream warming under current rules on small and medium streams — not just to salmon, steelhead and bull trout-bearing streams. These results create a presumption that current rule are inadequate to meet the stream warming limitations set forth in the following 12 TMDLS within the potential boundary of the ODF’s new rules. – and which include all perennial streams unless indicated to the contrary: North Coast (all perennial or fish bearing); South Coast; Upper South Fork Coquille watershed; Umpqua (all perennial and fish bearing); Rogue except Bear Creek watershed; Bear Creek watershed (all perennial and intermittent fish bearing); Applegate, Lobster Creek and Lower Sucker Creek watersheds; Willamette (perennial and/or fish bearing); Sandy; Mid Columbia Miles Creek watershed (all perennial and intermittent).
  1. The Board is considering applying increased buffers only to “Salmon Steelhead and Bull Trout” bearing reaches, but this option would protect very few of the stream miles  where warming limitations equivalent to or less than the PCW actually apply. We estimate based on the incomplete information provided by ODF thus far that well under a third of fish streams on forestlands in western Oregon would receive protection from the new rules if only SSBT reaches are included, and urge the Commission to ensure that the information necessary to determine the actual scope of the new rules relative to streams in need of protection is considered as part of this process.

It is important and appropriate that the state’s lead water quality agency should work to ensure that the Board makes an informed decision in June. This includes a full understanding of the stream warming limitations set by temperature TMDLs as well as the Protecting Coldwater Criterion.

  • Just because Oregon Coast Coho Salmon populations are up doesn’t prove that freshwater habitat is doing fine and changes in land use practices aren’t needed

In the public discourse over the last few months, we have run across several misconceptions about the need for new forest practices rules in Western Oregon. One of them, pushed by members of the landowner community, is that recent trends in spawner abundance demonstrate that all is well with Oregon Coastal coho salmon habitat and forest land use practices.

This conclusion is not supported by the science.

  • First, I am advised by NOAA fisheries that the initial ESA listing was primarily driven by trends in production of salmon, i.e. by declines in recruits (the number of juveniles that survive to maturity.), not spawners. (See e.g. Lawson, 1993). So a more relevant graph to consult would be the OD FW spawner & harvest numbers. (See below).
  • Second, while both spawners and recruits have increased since the 1990s when Coho were originally listed, this is still too short of a time period to reflect the result of changes in forest practices. It will take decades for streams and the fish inhabiting them to respond to these types of changes.
  • Third, the prevailing opinion of experts on this fishery is that the most likely causes for the upward trend are reduced harvest, short-term variation in marine and freshwater climate, changes in hatchery practices, and — in local some areas — directed habitat restoration efforts.

The Status Quo is not acceptable: Oregon’s Forest Practices Just Don’t Measure Up

The conservation community and the interested public it represents are understandably frustrated with Oregon’s slow rate of progress toward updating its forest practices rules to meet water quality standards. We urge this Commission to do everything in its power to make sure that the rulemaking currently underway results in a significant change to forest practices on a significant portion of the streams in need of greater protection.

Our stream protection standards are a fraction of those provided by our neighboring states, both of which sustain viable timber industries. The two charts below illustrate the gap for both fish-bearing and nonfishbearing streams when Oregon’s rules are compared to those in Washington and California.

Click here to view the full testimony, including charts and photos.