PUBLIC HEARINGS ON THE BOARD OF FORESTRY S PROPOSED COLDWATER PROTECTION RULE

Transcription

1 PUBLIC HEARINGS ON THE BOARD OF FORESTRY S PROPOSED COLDWATER PROTECTION RULE For small & medium salmon, steelhead & bull trout streams on Western Oregon private lands November/December 2016 What s going on? The Oregon Board of Forestry has proposed new stream protection rules that modestly increase restrictions on logging near some streams on some of Oregon s private forest land in Western Oregon. The purpose of these rules is to prevent streams from warming up when streamside shade trees are logged -- as required by our water quality laws. These rules will become effective July 1, 2017 unless public comments received by March 1 convince the Board to improve them. Even if the Board doesn t change its rule proposal before final adoption, comments submitted at public meetings and in writing will help get the word out that this rule change isn t enough to protect water quality and that Oregonians want stronger stream protection on more streams statewide. Rule language and more available here: Official state website on rule change Overall Message from Conservation Community: We strongly support the Board of Forestry s finding that Oregon s current forest practices cause excess water pollution and that the current rules need strengthening, BUT the proposed new streamside buffers are not enough to protect cold water for fish. 8 Key Points: 1. Change is welcome. Wider, mandatory streamside buffers on Oregon s private forestlands are needed and long overdue. (Scientists said the current buffers were too small in the early 90s). 2. The proposed buffers are too narrow. The proposed streamside buffers are not wide enough to prevent warming of streams used by salmon, steelhead and bull trout, as required by DEQ water quality standards. (Analysis supports foot buffers). 3. Upstream reaches need protection. The proposed rule does not protect salmon habitat because it does not extend the streamside buffers far enough upstream. (This rule ignored EPA advice). 4. Siskiyou Exemption Unjustified. The Siskiyou Region was left out of improved streamside buffers even though there is adequate information and urgency to protect fish in that region. (We don t need to do another expensive long-term study while the fish suffer). 5. Drop Variable Retention Option. The rule s provision that will allow an experimental variable retention alternative will bring too much logging to close to streams (outside 20 feet) and should be dropped. (If the no cut and overall buffers were larger this could work). 6. Drop North-sided Option. The Board should also drop the experimental idea of allowing smaller streamside buffers on the streams that run east-west. (The effectiveness of this option to prevent steam warming is unproven, and we know it won t prevent sedimentation or logging of trees that are needed to form healthy instream habitats). 7. Monitoring is Critical. The Board should closely monitor the effectiveness of the new rule. (Because the Board chose risky prescriptions even though meeting the coldwater standard the is legally required and extremely important to the survival of salmon and other freshwater species). 8. Equity Exemptions are cause for concern. The proposed rules allow some landowners to use smaller buffers, but logging should never be allowed to harm public waters and threatened and endangered species. (We are concerned that the threshold triggering the weaker rules is not high enough but will still set precedent for and limit the effectiveness of future public policy changes). 1

2 SUMMARY OF THE RULE PROPOSAL & KEY POINTS WITH BRIEF EXPLANATION I. SUMMARY OF THE RULE PROPOSAL The rule provides for two main buffer prescriptions: no harvest and variable retention. Both options apply within 60 feet of small and 80 feet of medium salmon, steelhead and bull trout streams. However, some landowners who are impacted the most by the new rule will be allowed to use a fourth less restrictive equity exemption option. 1. No cut buffers of 60 and 80 feet on small and medium SSBT streams, respectively. The new buffers will extend upstream to the end of the unit on the mainstem stream, as defined in the rule. 2. Variable retention buffers of 60 and 80 feet keep the small 20 foot no cut zone we have now and requires that more trees be left (measured in conifer and hardwood basal area) outside this area. a. Because the Board directed that the unlogged trees be well-distributed, the rule requires that the basal area be calculated according to 500 foot lengths of stream instead of the 1000 feet now allowed, and that the trees must be spread around within the outer 40 and 60 feet. For example, the rule establishes floors of 50% for the amount of total required basal area must be in the middle zone, with a 25% minimum in the outer zone. i. Unlike current rules, both conifers and hardwoods are counted for basal area calculations on the theory that hardwoods also provide shade to streams. ii. The currently required minimum number of live conifers will also be calculated per 500 feet of stream. Trees need only needs to be 8 inches in diameter to count, which is pretty small. (We did not succeed in getting a largest tree requirement). 3. Smaller north-sided buffers on stream reaches that run in an east-west direction. A 40-foot no cut buffer is considered adequate on the north side of these stream reaches. The minimum length of stream to which such a prescription may apply is 200 feet there is no maximum reach length. Other loopholes also exist for near-stream management that may be harmful. For example, precommercial thinning or release activities still are allowed anywhere in any of the buffers. The rule does not inform the question of how these activities contribute to attainment of ecological or regulatory objectives, they are simply presumed to be consistent. 2

3 II. KEY POINTS WITH BRIEF EXPLANATION POINT #1: Larger mandatory stream buffers on Oregon s private forestlands are needed and long overdue This rule proposal is a welcome improvement of Oregon s outdated forest practices rules. The new rule was motivated by scientific research that shows current private lands logging rules don t prevent small and medium salmon, steelhead and bull trout streams from being warmed more than water quality standards allow.i The Board of Forestry s rule proposal correctly recognizes that new mandatory, enforceable regulations are needed protect cold water from harmful logging. This rulemaking is the most significant improvement for stream protection on private lands in almost 25 years, signaling an end to industry s stranglehold on the Board of Forestry which has, until now, been unable to propose significant rule changes to protect public natural resources. ii This chart created by the Oregon Stream Protection Coalition shows how much smaller the areas with special management restrictions are next to fish-bearing streams in Oregon compared to Washington and California. The proposed rule change will add only 10 feet to current buffers on LESS THAN A THIRD of the small and medium fish streams in Western Oregon (excluding the Siskiyou) and some harvest will still be allowed outside a small 20-foot no harvest area. Washington uses a 50-foot no harvest area with larger total buffer sizes. 3

4 POINT #2: Although an improvement, the proposed buffers are not large enough to prevent warming on salmon, steelhead and bull trout steams, as required by DEQ water quality standards The information considered by the Board of Forestry during the five-year process that led to this rule proposal includes a scientific assessment of how large buffers would need to be to reliably prevent stream warming from logging in riparian areas. This science clearly indicates that buffers need to be between feet wide to have a high chance of preventing coldwater streams from heating up more than is allowed the Department of Environmental Quality s water quality rules. See below Oregon Stream Protection Coalition Markup of ODF graph showing modeled efficacy of various sized no harvest buffers. We marked up this graph of analysis conducted by ODF on a range of alternatives to show how the proposed buffers are predicted to perform in relation to meet the.3 degrees C standard. The answer is: not very well. The NC options are no cut buffers sizes. The rule does not require no-cut buffers. The Board has not given the public any credible reason why more adequate buffers were not chosen, claiming that the buffers proposed meet the standard to the maximum extent practicable. But there is no evidence that larger buffers are not feasible to implement the only legal reason the Board can have for choosing management practices that don t fully comply with water quality standards its rules are supposed to meet. Economic analysis showed harvest levels would not be significantly impacts by 90 foot buffers, but these buffers would have worked much better to protect coldwater. The truth is that some members of the Board didn t understand how important it is to prevent even small amounts of stream warming for salmon and steelhead, deciding that it is more important to continue harmful logging in violation of Clean Water Act standards. 4

5 POINT #3: The proposed rule is incomplete because it stops short: it needs to apply further upstream from salmon habitat than the end of a logging unit The proposed rule applies to reaches identified as habitat for salmon steelhead or bull trout, and would only apply upstream of this habitat if the end of habitat occurs within the unit. In that case, the new rule will apply upstream to the logging unit boundary -- whatever that distance may be. The science and the letter of the PCW water quality standard itself supports the need for coldwater protection upstream from the end of salmon, steelhead and bull trout habitat. Most notably, a recent paper illustrates that only 50% of heat gain may be lost 900m (975 yards) downstream, so there is no way that just protecting SSBT reaches going to protect those reaches from warming caused by unbuffered or poorly buffered harvests upstream. iii Urge the Board to apply its new rules a significant distance upstream from SSBT reaches in its rule proposal: a minimum of the 1600 feet urged by the EPA during the rule development process. iv POINT #4: The Siskiyou region is left out when there is adequate information and urgency to act The public has been given no logical reason why the Board is not also proposing a rule change to meet the Protecting Coldwater Criterion for the Siskiyou region or Southwest Oregon. Available evidence is more than adequate to overturn any presumption that current forest practices rules are adequate to protect coldwater on the valuable salmon and steelhead streams in the Rogue Basin. In a memorandum provided to the Board of Forestry on November 2 by the Oregon Stream Protection Coalition aquatic ecologists Chris Frissell and and Rich Nawa support the contention that an entirely new RipStream study is not necessary to support a rule change to meet the Protecting Coldwater Criterion in the Siskiyou. there is adequate information at hand for the Board to find that the current riparian rules do not meet the statewide limitation on stream warming set by the Protecting Coldwater Criterion (PCW) and to determine what stream protection would be adequate in the Siskiyou region. More information available at: Ashland Testimony and Frissell Siskiyou Memo Note: The Board has now agreed to begin assembling information to support a rule change in the Siskiyou and on the Eastside, but the timeline for policy change is open-ended. The Board could still decide to extend the proposed westside protection to the Siskiyou under this proposal. 5

6 WHERE THE NEW BOARD OF FORESTY RULES WON'T APPLY Over a million acres of private forest and 1500 miles of salmon and steelhead streams (SSBT) exist in the Rogue Basin. 317 miles of SSBT are the small and medium stream sizes that should have received increased protection under the new rule 6

7 POINT #5: Logging should not be allowed within the small proposed buffers; the variable retention alternative should be dropped This is not a low-risk proposal to protecting cold water because of the small size of the buffers proposed. The allowance of logging within these too-small buffers according to a minimum basal area floor, minimum tree, and distributional requirements adds to this already high risk that the coldwater standard will not be met. The Board should drop the variable retention option from the rule. v EPA Analysis of the variable retention option based on the 2015 ODF modeling estimates that the variable retention option will increase stream temperatures by 1.2 degrees C on small streams and.6 degrees C on medium streams. (P. Leinenbach Memo to A. Henning, January 27, 2016, 11 pages). The PCW prohibits any land use activity from warming streams by more than.3 degrees C. POINT #6: The Board should also drop the experimental north-sided buffer option The north-sided buffer option is just too risky: it allows even smaller buffers than the default buffers, which are already too small to reliably prevent stream warming. Even if these buffers did work to limit solar heating there is no question that 40 foot buffers can t meet sediment, wood and microclimate needs. This option may also be difficult and expensive for the state to enforce: landowners are responsible to ensure that this prescription is only applied to qualified stream-reaches of at least 200 feet long (within 30 degrees of East/West), but Stewardship Foresters will need to verify these determinations. POINT #7: Continued monitoring is critical. Especially if buffers are not increased and/or variable retention and north-sided buffers are not dropped, the Board must recognize the riskiness of its approach by making effectiveness monitoring of this rule a top priority Full compliance with the water quality rule that this rule is designed to meet is extremely important to fish and other aquatic life because it recognizes that harmful stream warming will occur across the landscape if even a small amount of warming is permitted on individual harvest units. POINT #8: Landowners should not be allowed to provide weaker protection unless the new rule subjects them to a truly burdensome level of encumbrance -- i.e. more than 8% additional encumbrance. The proposal allows alternate prescriptions on 147 miles of salmon, steelhead and bull trout streams (6% of SSBT) on the basis that it is unduly burdensome to ask for the new buffers on parcels whose regulatory burden is increased by 8% or more due to this new rule. 7

8 This is already an extremely modest rule proposal, with very limited impacts on the vast majority of landowners. vi The modest change represented by the proposed rule prescriptions already reflects a tradeoff in favor of minimizing impacts to landowners. We are extremely concerned that establishing an 8% increase as a threshold that justifies exemption of landowners from new regulation needed to meet a water quality standards sets a dangerous precedent. We urge the Board to reconsider how this proposal for regulatory relief is designed. For example, alternative buffers could be offered only to those very few landowners that have a very large amount of their land subject to riparian restrictions (e.g. 25% or more) or those that are willing to enter into long-term management planning arrangements that include lower impact harvest methods, small unit sizes, permanent large tree retention or other reasons. i RipStream study citations: Groom J. D., L. Dent, L. and Madsen. 2011a. Stream temperature change detection for state and private forests in the Oregon Coast Range. Water Resources Research 47, W01501, doi: /2009wr009061; Groom J. D., L. Dent, L. Madsen, J. Fleuret. 2011b. Response of western Oregon (USA) stream temperatures to contemporary forest management. Forest Ecology and Management 262(8): ii Unsuccessful efforts to initiate riparian rule changes include the one resulting from a state-federal agreement and Executive Order No. EO creating at statewide Forest Practices Advisory Committee tasked to determine what, if any, changes to forest practices are necessary to meet water quality standards and restore salmonids and to make specific recommendations. Most of the Forest Practices Advisory Committee Report (FPAC 2000) recommendations were never implemented. The most significant improvements to the OFPA and its rules that have occurred since 1992 are: 1) legislative change authorizing the State Forester to require that leave trees (2 tpa) be clumped along debris torrent streams, resulting in mapping work and the rule that now appears at (Protection Along Debris Torrent-Prone Streams). It is unknown whether, how often, or how effectively this rule is being implemented,and; a wet weather haul rule 2003 via OAR However, while the new rule arguably helps reduce sediment volumes reaching streams at some sites during storms, it is triggered only after stream turbidity is visibly increased and it does not address the fundamental problem of road-derived water being routing to streams, so does not prevent discharge of polluted runoff to streams or impairment of aquatic life and drinking water sources. iii Supporting science regarding the need to project significant upstream extent includes: T. Davis, Reiter M, and Groom, j. Newton s Law of Cooling (2015) paper. iv Leinenbach, P Testimony of Peter Leinenbach, Aquatic and Landscape Ecologist, Environmental Protection Agency, Board of Forestry July 23, 2015 (Meeting Minutes Attachment 25) (2pp). v EPA Analysis of the variable retention option based on the 2015 ODF modeling estimates that the variable retention option will increase stream temperatures by 1.2 degrees C on small streams and.6 degrees C on medium streams. (P. Leinenbach Memo to A. Henning, January 27, 2016, 11 pages). The PCW prohibits any land use activity from warming streams by more than.3 degrees C. vi As the ODF analysis indicates: o About 90% of parcels will not be impacted by the proposed rule at all only 11%, or 7885 parcels are even affected. o 55% of those affected parcels have less than 2.1% greater encumbrance as a result of this rule. o The average encumbrance per acre is.5% (6.1% for very small (2-10 acres) parcels and.5% for parcels over 5000 acres. o Less than 1% of affected parcels have an increased encumbrance of 10% or more. 8