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 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.

  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.

 

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

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 

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.

 

 

  Frissell Paired Watershed Study Memo Public Review

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Oregon Stream Protection Coalition Urges Board of Forestry to Act

An analysis of western Oregon harvest units completed over five years ago shows that stream temperatures on small and medium streams are elevated by logging allowed under Oregon’s Forest Practices Rules.  This study – now published in two scientific journals —  clearly shows that Oregon’s rules don’t protect the cold water that fish need according to standards set by the state’s Department of Environmental Quality (DEQ) and approved by the federal Environmental Protection Agency (EPA). The loss of cold water habitats is a key reason why salmon, steelhead and bull trout have declined and require protection under the Endangered Species Act.  Yet, the Oregon Board of Forestry – whose job it is to ensure that logging rules meet water quality standards – continues to delay release of a new rule.

Twenty-one nonprofits formally joined together in June as the Oregon Stream Protection Coalition to demand that the state meet its obligations under the Clean Water Act with a new riparian protection rule.