Conservation Note for August

Conservation Committee Note for August

What is Oregon’s most important defense against climate change?  Our forests.
What is the most important origin of our clean water for drinking and salmon?  Our forests.
What set of rules governs how we keep our forests and streams healthy?  The Oregon Forest Practices Act (OFPA.)
Do you know what the OPFA says, and how it came to be?  This month we introduce you to Mary Scurlock of the Oregon Stream Protection Coalition. Mary will introduce you to the OPFA and its history.
You will learn why stream riparian areas may be required to be 60 ft or 80 ft or 100 ft, yet it is still legal to harvest down to 20 ft in many instances.
You will learn why our streams can warm after timber harvest more than Federal laws allow, but we can still continue the same harvest practices.
After reading Mary’s article, we hope you will form your own opinion about the OPFA,  and how it does or does not need to change as we face climate change.

Strengthening Oregon’s Forest Practices Act 

to Protect Water, Wildlife and Climate

By Mary Scurlock, Oregon Stream Protection Coalition

Citizen activism, including a series of successful lawsuits, succeeded in revolutionizing management of Oregon’s 18 million acres of federal forests.  The 1994 federal Northwest Forest Plan and its landmark Aquatic Conservation Strategy set much clearer limits on harmful impacts from logging, grazing, mining and other land uses to ensure protection and restoration of declining species and the natural processes that create and maintain habitats.  

The good news is that federal forests have drastically curtailed forest habitat degradation and we are now seeing better conditions in some watersheds. (USDA-FS, 2012).   And more trees left standing on federal forests means more carbon sequestered, helping to control climate change. 

The bad news is that about 11 million acres of state and private forests in Oregon are being logged more intensively than before federal  reforms, posing high risks to water quality and wildlife. Conservation advocates strongly believe that Oregon’s current laws don’t adequately protect water quality or quantity for community drinking water, fish and other wildlife, especially given climate change, and this view is widely shared by state and federal water and wildlife oversight agencies.

What is the Oregon Forest Practices Act? 

The Oregon Forest Practices Act, contained in 135 pages of small print Oregon Administrative Rules (OARs,) authorizes the Board of Forestry to set standards for logging of state and private forests to protect natural resources belonging to the public, including water, air, fish and wildlife. Oregon forest policies once led the nation and were widely considered a model for other states, but opposition to increased regulation by private property and corporate timber lobbies has stymied critically needed changes to water protection standards, and Oregon has lost its leadership position.  Recent history indicates that policy reform will continue to be slow and piecemeal if left to the Board of Forestry without new legislation. 

A brief history. 

In the beginning, forest landowners could do pretty much anything they wanted on their forest land.

1864: Oregon law addressing fire control

1907: act created advisory body which later became the Oregon Board of Forestry

1941: act expanding state purview over reforestation

1971-1972: Oregon passed the country’s first Forest Practices Act, implemented beginning in 1972, setting minimum standards for reforestation, road construction, timber harvest, chemical use, and slash disposal on private and state lands.These standards were accepted by Federal forest managers as the minimum baseline. 

1972: Federal Water Pollution Control Act and 1977 “Clean Water Act” increased federal oversight of environmental protections.

1970s: Nevada, Washington and California passed their own forest practice laws.

1987: HB 3396 limited but did not eliminate  industry members with conflicts of interest on the Board of Forestry 

1991: SB 1125 required review of stream classification, stream buffers, and water quality standards attainment

1997: SB 211 authorized logging restrictions on landslide-prone areas to protect public safety

Current Water Protection Rules date to the early 90s. The water protection rules in effect today were largely adopted in 1994 as a result of public concern over stream temperature increases, sediment pollution, habitat degradation due to large wood depletion and impaired fish passage at stream crossings. These rules were a big improvement over the 1972 and 1987 rules, but they did not reflect expert scientific support for buffers of 100 feet on all fish-bearing streams. Instead harvest was allowed outside 20 foot no-cut areas by setting relatively low tree retention standards within 50, 70 and 100 feet of small, medium and large fish-bearing streams, respectively, often resulting in clearcutting down to within 20 ft of the stream.  Other key weaknesses were inadequate limits on logging adjacent to smaller water bodies and on unstable slopes and failure to meaningfully address the need for comprehensive road-related remediation. They also do not take into account the cumulative watershed effects of landscape-level short-rotation clearcut logging on streamflows. Although clearcuts are limited to 120 acres, adjacent clearcuts are allowed as soon as reforestation produces trees 4 ft tall or 4 years old, thus allowing much of an entire watershed to be without mature trees or mature canopy.  

Since 1994 there have been some rule changes that marginally improved water protection including, 

1.  a public safety landslide rule limiting operations on sites at high risk of shallow-rapid landslides 
2. a 2003 rule prohibiting ground-based harvesting on “steep or erosion-prone slopes”; 
3.  a 2003 “wet-weather hauling rule” requiring operators to cease hauling where road runoff is causing a visible increase in the turbidity of fish or drinking water streams, and 
4. a 2017 rule for small and medium Salmon Steelhead and Bull Trout (SSBT) streams in parts of western Oregon applying four buffer options intended to reduce shade removal to meet water quality requirements by largely excluding clearcutting from within 60 and 80 feet of small and medium SSBT streams, respectively. 

Despite these changes, Washington, California and Idaho still  have stronger protections for forest waters in a number of key respects:  

• Fish Streams:  Washington requires no-cut buffers of at least 50 feet for fish habitat streams and applies heavy restrictions as far out as 200 feet that frequently result in unharvested areas of well over 100 feet. California directs no-harvest within 30 feet and significant retention out to 150-200 feet.  Oregon’s no logging area next to fish streams is generally only 20 feet, with so few additional trees required that clearcutting can legally result outside 20 feet on small and medium streams, and 50 feet on large ones.  (On “SSBT” streams, the 2017 rule requires retained trees to be “well-distributed” which excludes clearcutting within 60 and 80 feet of small and medium SSBT streams).  
• Non fish perennial streams.  Washington, California and Idaho all require some trees to remain unharvested along the numerous fish-less headwater streams that flow year around, with various sizes and types of buffers. California requires no-cut buffers of 15 feet with high retention required out to 85 feet, Idaho requires high retention within 30 feet, and Washington has 50-foot no-cut buffers on a majority of these streams.  In Oregon, most of these small, sensitive streams can be clearcut with no buffer at all (0 feet).   
• Landslide protections.  In Washington, prior approval of forest operations in areas at high risk for landslides is routinely required to make sure logging and associated activities won’t increase risks to forest waters or public safety.  In Oregon these areas are routinely logged without requirements for state review to prevent logging that puts forest waters at increased risk. 
• Aerial Spray of Forest Chemicals:  Washington takes the most cautious approach to aerial spray of pesticides around forest waters, with no-spray buffers ranging from 50 to 325 feet for streams depending on site and weather, whereas Idaho prohibits aerial spray within 100 feet of all surface waters.  California is more cautious around people, with a quarter-mile (1320 feet) daytime buffer around schools and daycare centers, while Washington has a 200-foot general exclusion zone only around residences, but not schools or businesses.  Oregon’s largest generally applicable spray buffer for streams, schools and dwellings is 60 feet, but most smaller streams have no (0 feet) buffer at all from chemical spray. 

Why is change is so hard? Why are we so far behind our neighboring states? The short answer is that the OFPA is full of internal tensions that leave too much to agency discretion and the administrative process to resolve.  For example, the Act declares that the “leading use” of private forestland is timber production, but that the Board of Forestry is duty-bound to implement rules designed to ensure “full compliance” with water quality standards.  In resolving these competing mandates, the Board perceives itself to have almost unfettered discretion because it can rely on problematic provisions in the Act that give the benefit of the doubt to the status quo. And contrary to Washington, statutory language requiring monitoring and adaptive management does not establish a clear bar for adequate monitoring or triggers for policy change.  

What changes are needed:  Full treatment of all the ways the 135 pages of OARs in the Oregon Forest Practices Act could be changed to benefit water and wildlife is beyond the scope of this piece, but the following kinds of changes would help:    

1. Establish minimum water protection requirements for stream buffers, landslide protection and aerial spray. The last major statewide improvement to the OFPA stream protection rules occurred as a result of new legislative direction.  Legislative action was also necessary for Washington state to adopt the “Forests and Fish Report” setting a highly specific new forest practices baseline meriting presumptive compliance with both the federal Clean Water Act and the Endangered Species Act.  Oregonians would benefit from legislation to establish a “floor” of minimum protections for public waters given the importance of state and private watersheds to drinking water and fisheries. A recently filed initiative petition proposes increased minimum buffer sizes for aerial spray and logging, prior approval of operations on high landslide hazard locations, and elimination of conflicts of interest from regulatory decisions.

2. A combination of regulation and targeted investment and incentives is needed to move private lands toward the longer rotations that will maximize carbon sequestration on working forests. The progressively shorter rotations (time from tree planting to harvest, once 60-80 years, now often 45 years) of the recent decade results in fewer older trees and less effective carbon sequestration.

3. Authorize the Board to change rules based on best available information.  The current standard to initiate a rule change is that harm must be proved rather than that lack of harm must be proved.  It is often difficult in practice to prove harm even when harm is occurring. For example, over a decade of research and stream studies were needed to demonstrate harvest practices causing harm to water quality (stream temperature elevation post timber harvest), which led to the 2017 rules change.  Continuing harm occurred during those years of studies. After this prolonged gathering of data, the Board of Forestry was able to use its discretionary powers to ignore the scientific evidence telling us what changes are needed, and to enact rules changes far short of what is needed to insure water quality.  Because none of these studies was specifically carried out in the Siskiyou Region, the Board was able to leave the old rules in place in that region, even though they were proved to be inadequate in a similar setting, until more studies are done and more years pass, with ongoing harm to our streams.

4.  Better define meaning of “maximum extent practicable.” The requirement that water quality standards need only be met “to the maximum extent practicable” actually means to the extent feasible for forest landowners as a whole, but it has been mis-used to allow general concerns about adverse economic impacts on individual landowners to weaken regulations, even where these impacts are not significant for the majority of landowners.

5. Eliminate Conflicts of Interest on Policymaking Boards and Timber Dominance of Advisory Committees.  Oregon allows conflicts of interest in setting timber policies by the Board of Forestry that would otherwise be prohibited under state ethics laws.  Advisory committees are also dominated by timber interests, without countervailing representation from other sectors of the public with valid interests affected by private forest management.  This problem is partially addressed by a recently filed citizen initiative petition for the 2020 ballot.

The ecologists who developed the federal Northwest Forest Plan clearly recognized that “a complete solution” to forest ecosystem conservation “cannot occur without including nonfederal lands.”  (Federal Ecosystem Management Assessment Team, 1993 at p. II-80). Despite the demonstrated economic feasibility of stronger limits on state and private logging in other Northwest states over the last 25 years, Oregon’s forest management rules and water protection policies are slow to change.  It’s time for Oregonians to demand new policies on state and private forestlands. Our forests and our clean, cold waters of the state are our best defense against the changes of global warming. We cannot wait, we need to change the Oregon Forest Practices Act now to better protect our forests and our water.