center for biological...
TRANSCRIPT
August 14, 2017
Dr. J. Keith Gilless, Chair California Board of Forestry and Fire Protection P.O. Box 944246 Sacramento, CA 94244-2460
Sent via electronic mail to [email protected]
RE: Cumulative Impacts Assessment Checklist, Technical Rule Addendum No. 2 and Appendix Amendments, 2017
Chair Gilless and Board Members:
The Center for Biological Diversity submits the following comments concerning the Board of Forestry 45-Day Notice of Proposed Rulemaking for amendments to Cumulative Impacts Assessment Checklist, Technical Rule Addendum No. 2 and Appendix Amendments.
This process has been going on for three years and now proposes to produce changes that will not help forest wildlife or promote transparency. Instead, the proposed changes take an already weak Technical Rule Addendum No. 2 and further weaken it by calling it “guidance” and then changing words such as “should” to “may” in furtherance of that goal. We ask that you cancel this rulemaking and begin anew to produce regulations that seek to meaningfully protect California’s forest-dependent wildlife and promote transparency of the timber review process with respect to actions that impact wildlife.
No analysis is provided as to how these changes comply with CEQA. Clearly there is potential for significant impacts due to the changes, such as the changes (from “should” to “may”) with respect to snags, non-listed species, and oaks, as well as the lack of any changes to meaningfully protect late-seral forest. While we believe the rulemaking should start over, at the very least it does not meet CEQA’s mandates with respect to analyzing a reasonable range of alternatives (including one that does that opposite of what the proposal does, such as increasing protections for wildlife and forest attributes such as snags, oaks, and late-seral structures), or analyzing, avoiding, and mitigating potentially significant impacts, such as those described above. Until compliance with CEQA is achieved the rulemaking is not only bad policy with respect to forest-dependent wildlife, it is illegal as well.
Sincerely,
Justin Augustine Center for Biological Diversity
CENTER fo r B IOLOGICAL D IVERS ITY
Received 8/14/17 (via email)Board of Forestry and Fire Protection
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Augusts 14, 2017
Board of Forestry and Fire Protection Attn: Eric Hedge Regulations Coordinator By electronic mail at [email protected] from [email protected]
Re: Cumulative Impacts Assessment Checklist, Technical Rule Addendum No. 2 and Appendix Amendments, 2017 Title 14 of the California Code of Regulations (14 CCR), Division 1.5, Chapter 4:Subchapter 4, 5, & 6, Article 2 Amend: § 912.9, 932.9, 952.9
Dear Mr. Hedge,
Pacific Coast Federation of Fishermen’s Associations (PCFFA) and Institute for Fisheries Resources (IFR) request that the cumulative impacts analysis amendments be enforceable, which is not the case when the word “may” is substituted for “must, “ “shall” or “should.” “Guidance level” rules in their present proposed form are not a functional equivalent of CEQA because they are not enforceable and must prevent “take.”
We need a robust and accelerated program of recovery for state and federal ESA-listed salmonids in California in order to 1) reverse their decades-long decline toward extinction and 2) restore the beneficial uses, including cold-water fisheries. The rules need enforceable time schedules and margins of safety analysis. A valid, proper, enforceable, definition of “significance” is necessary for the Cumulative Impacts Rule, including independent monitoring and evaluation with error analysis to make sure the rules are being enforced and that they are effective. Additionally, repeated selective cut may not maintain enough canopy to protect the soil from erosion and sedimentation of streams.
David Bitts President Larry Collins Vice-President Stephanie Mutz Secretary Chuck Cappotto Treasurer
Noah Oppenheim Executive Director Glen H. Spain Northwest Regional Director Vivian Helliwell Watershed Conservation Director In Memoriam: Nathaniel S. Bingham Harold C. Christensen W.F. “Zeke” Grader, Jr.
PACIFIC COAST FEDERATION of FISHERMEN’S ASSOCIATIONS
Please Respond to: □ California Office
P.O. Box 29370San Francisco, CA 94129-0370Tel: (415) 561-5080Fax: (415) 561-5464
□ Northwest OfficeP.O. Box 11170Eugene, OR 97440-3370Tel: (541) 689-2000Fax: (541) 689-2500
www.pcffa.org
Received 8/14/17 (via email)Board of Forestry and Fire Protection
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Please keep in mind as you review these comments the intent language as expressed in the Forward by Jerry Partain, Director, Department of Forestry, in the 1985 Edition of the Forest Practice Rules:
“The goal of modern forestry is to manage the resource so that its benefits will continue undiminished for all future generations….The Forest Practice Rules have attempted to bring together the concerns of workers in forestry and of laypersons and professionals in other resource areas to assure a continuous supply of forest products without damaging the resource base. This requires the consideration not only of forestry in the traditional sense, but also of fisheries and wildlife, watershed protection, esthetics and recreation potentials.”
Pacific Coast Federation of Fishermen’s Associations is the largest trade association of commercial fishing families on the West Coast. For more than forty years, PCFFA has led the commercial fishing industry in assuring the rights of individual fishing men and women, and in fighting for the long-term survival of commercial fishing as a productive livelihood and way of life. Our members coast-wide rely on healthy salmon fisheries from California’s rivers. Not only do we rely on these rivers and the forests that support them to restore endangered salmon runs so we can someday fish again on the “harvestable surplus,” but many other coastal fishing support businesses rely on fishing to bring income to the area. Money earned from salmon fishing is spent locally as well. Commercial boats from up and down the coast brought millions of dollars worth of salmon to market in Eureka in recent decades.
PCFFA’s sister organization, the Institute for Fisheries Resources (IFR), is dedicated to the protection and restoration of fish resources and the human economies that depend on them. A critical component of both organizations’ missions is robust protections for water quality in surface waters that support salmon fisheries.
Please tighten up these rules for maximum salmonid protection as per our suggestions. Thank you for considering our comments.
Noah Oppenheim Executive Director, PCFFA and IFR Vivian Helliwell Watershed Conservation Director, PCFFA and IFR Cc: Congressman Jared Huffman State Senator Mike McGuire Assemblyman Jim Wood
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August 14, 2017
Dr. J. Keith Gilless, Chair
California Board of Forestry and Fire Protection
P.O. Box 944246
Sacramento, CA 94244-2460
Comment letter submitted via email mail at the following address:
RE: EPFW Comments regarding 45-Day Notice of Proposed Rulemaking for Amendments
to Board Technical Rule Addendum No. 2 and Cumulative Impacts Assessment Checklist
Chair Gilless and Board Members:
EPFW strongly disagrees with the BOF proposed changes in the Technical Rule Addendum
No. 2 that removes provisions encouraging protection for oaks. The changes appear to be an attempt to chisel away at the very limited protections for oaks currently in the Rules and reflects the fact that the Board of Forestry and Cal Fire and DFW continue to ignore the massive amount of essential oak resources lost in timber operations in the Cascades and Sierra each year – especially during the process of clearcutting. EPFW estimates that approximately 98% of all cavity containing and acorn producing oaks are lost in clearcutting/evenaged logging and the impact on bear, deer, birds and other mammals is tragic and well known.
By removing the word “should” and the reference to the Joint Hardwood Agreement, the Board will be giving the timber industry the signal to destroy even more acorn and cavity producing oak during timber harvest.
We request that the Board remove the proposed changes to the Rule on oaks/hardwoods and that the Board more fully educate themselves about the value of hardwoods, the massive loopholes in the regulations in the FPA rules and the status of oak resources. We have attached two documents that we ask the Board to review along with this letter – a review that the Board requested in 2003 about hardwoods and the implantation or lack thereof of Technical Addendum 2, and a research paper on oaks and mule deer (that CAL FIRE deliberately ignores in THP reviews). There are many other resources and information that should have been
Received 8/14/17 (via email)Board of Forestry and Fire Protection
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reviewed prior to making these proposed changes. Some excerpts from the 2003 review(referenced above) are copied below – It is disappointing that it appears the Board drafted the proposed changes without seeking more background and input from the public regarding our impaired oak resources.
At the request of the BOF's Forest Practice Committee, the California Department of Fish and Game
(CDFG) reviewed the application of a new component for cumulative effects analysis regarding
hardwoods under Technical Rule Addendum No.2 of the California Forest Practice Rules Sections
932.9 (C) (4) (e) and 952.9 (C) (4) (e).
This new section became effective in 2003, and it was added after considerable discussion in 2001
and 2002 regarding conserving hardwood resources on private commercial timberlands in the Sierra
Nevada and Cascade regions. While BOF recognized the importance of all hardwood species to
wildlife throughout California's commercial forestlands, the BOF chose to focus attention
on deciduous oaks [primarily California black oak (Quercus kelloggit)] in the
Sierra Nevada and Cascade regions.
The BOF adopted the new section seeking (1) improved analysis and disclosure of the impacts
of the proposed timber harvesting operations on hardwood resources and (2) maintaining
long-term viability of hardwoods on forestlands through post-harvest retention of an adequate
hardwood resource to ensure recruitment and regeneration. The BOF concluded that the
existing rules were generally insufficient in achieving those goals so the new rule was
adopted.
With adoption of the new rule section, there are two Rule sections that address hardwoods. These
include the new and existing sections in Technical Rule Addendum No. 2, and another rule [959.15 (a)]
that recommends retention of 400 ff basal area per 40 acres of deciduous oaks in the central and
southern Sierra Nevada in areas designated by the CDFG as deer migration corridors, holding areas,
or key ranges. The BOF and CDFG are interested in the overall effectiveness of these rules in
conserving hardwood resources and theirattendant wildlife. See document attached for the findings
and conclusions of the Board requested study…..
• EPFW does not believe that the reference to the Joint Hardwoods Agreement should
be removed until an updated and improved replacement has been developed. The
Board needs to leave this section of the Technical Addendum unchanged until it has
legitimate and fact-based understanding of the status of this critical resource, and
how the rules are working. Oaks in the Sierra are a critical resource – especially as
other species succumb to drought and bark beetle.
• DO NOT REPEAL without a completed and improved REPLACEMENT!!
The published Statement of Reasons re the changes on oaks is incomplete and misleading to the public because it only states that the proposal is just removing the reference to the Joint Hardwood Agreement. The Statement of Reasons fails to mention that the language has been changed to replace “should” with non-enforceable “mays” or “can”.
The current Rule states, “Shall be guided by” the Joint Hardwood Agreement. As the Board has previously been advised (see letter included below), a “should” is a “shall” in CEQA.
This is a thus major change --effectively stripping the rules of any meaningful resource protections--- see the language from the Statement of Reasons and Text below.
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The language in the Statement of Reasons also misleads the public into thinking that there is any intent by the Board to work on hardwood protection or to revise the Joint Hardwood Agreement. There has been no substantial discussion of future efforts of this nature and the work is not prioritized by the Board.
The Statement of Reasons states that the document has limited applicability to THPs but fails to acknowledge that the public has repeatedly reference this section in THP comments re importance of oaks to mule deer and other species etc. ---- it is applicable to THPs.
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The recommendation to eliminate the Joint Hardwood agreement was not supported by compelling evidence about what was no longer valid and feels like a deliberate attempt to erase any evidence of a comprehensive and valid document that sought to protect critical oak resources in timber operations. The Statement of Reasons Rule changes fail to show any real evidence or legitimate reasons for the proposed language changes and elimination of the Joint Hardwood agreement. The proposed changes eliminate reference to the imperiled Mule Deer herd. This should not be eliminated. Their survival is threatened by removal of oaks critical for their winter survival. Oak protections in fact need to be made much stronger language to prevent timber industry from destroying oaks that are critical species for healthy and resilient populations of bear, deer, cavity nesters and other species. Wildlife is threatened as never before by the Trump administration and climate change – it is time that Board of Forestry members “do their job” which is to ensure that timber harvest rules equally protect public trust resources. California voters expect meaningful protections for our public trust resources including our forests and climate. Please eliminate the changes proposed in the Biological Resources section re oaks/hardwoods and later work to strengthen the Joint Hardwood Agreement and FPA rules on oaks. Irreparable damage to our forest resources continues your shift and is your responsibility. EPFW is also a sign on the letter EPIC will be submitting on the Rule proposal which addresses additional issues.
Vice President Ebbetts Pass Forest Watch Attached below is the letter from Resources Attorney to Cal re the use of should vs shall which was a direct response to discussions we and others held re the Rules re Oaks
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Giant Oaks needed by cavity nesters and other wildlife cut during clearcutting
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Oak Massacre from SPI Clearcut MORE BACKGOUND on Typical Issues in THPs re Oak Protections CSERC COMMENT LETTER ON THP 4-12-012 RE OAKS (EXERPT) OAKS ARE NOT PROTECTED AS LEGALLY REQUIRED DESPITE RECENT MANDATE Page 174 of the THP lists the very specific wording in 959.15 that states: “Where present at time of timber harvest, 400 sq.ft. basal area of oaks per 40 acres should be retained and protected, giving preference to deciduous oaks.” That wording cannot be any clearer. 400 square feet of basal area of oaks per 40 acres should be retained and protected within the project area. SPI and CAL FIRE once again are failing to follow the law and abide by the clear wording in that requirement. Page 29 states that an average of 2% of each evenaged regeneration unit will be retained as islands of green trees. “Where black oak trees are available, preference will be given to establishing retention areas that contain black oak>22” in dbh.” While retaining black oak COULD be accomplished through the implementation of such wording, there is absolutely nothing in the THP concerning wildlife retention areas that requires that any specific number of oaks must be retained. While incidental retention of oaks will certainly be expected to occur, for purposes of meeting the mandate to retain 400 square ft of basal area of oaks per 40 acres in the project area where feasible, the wildlife retention areas cannot be assured to meet any portion of that requirement.
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On page 29 the THP states that in each regeneration harvest unit an average of two “regenerating” hardwood trees per regenerated acre will be retained. “Regenerating” appears to mean that the trees may have been cut and are now recovering and regrowing. If that is the definition (which is not provided in the THP), retaining regenerating hardwood trees has zero value for meeting the basal area requirement for oaks. If instead “regenerating” means an oak that is not cut or bulldozed and which will be fully protected, the statement on page 29 is still meaningless because it fails to provide any minimum size for the oaks “to be retained.” If 1” dbh oaks qualify, retaining those oaks may be meaningless because it will be at least 30 years and possibly far longer before the oaks become mast-producing hardwoods that provide acorns for food. Furthermore the function of oaks as mature trees providing habitat for nesting, resting, shade, and other structural values will not be accomplished for perhaps 100 years or longer. Thus, if no minimum size limit is provided for the two “regenerating” oaks per acre that are to be retained, the mitigation fails to provide value and fails to meet the requirement to retain 400 square feet of basal area of oaks per 40 acres. Furthermore, throughout the THP there is a failure of the document to provide a pre-harvest assessment and analysis of the amount of oaks present in each evenaged unit to be logged and the minimum number of oaks that must be retained in the project units to meet the State basal area requirement. In a May 30, 2012 response to comments for the Porkchop THP, the response states that the rule “indicates that a THP “should” retain oaks where 400 square feet of basal area per 40 acres exists prior to harvest. The rule does not require the retention of oaks at 10 square feet of basal area per acre as suggested in the public comment.” (pg 94). CSERC strongly disputes this biased and false position by the author of the response. While the State requirement does indeed use the word “should” a recent determination by the State agreed that for purposes of CEQA the word “should” must be followed unless there is an exceptional justification for not doing so. In the case of the China Hollow THP, there is no justification for not assuring that the recommended minimum level of 400 square feet of basal area of oaks be retained post-harvest across the project units. In the May 30th Porkchop response, the author for CAL FIRE writes that the objective of of 959.15 is to provide protection of wildlife habitat, not to preserve a certain number of oak trees unless those trees are determined to provide wildlife habitat. This is another example of illegal and highly irresponsible bias on the part of CAL FIRE. Members of CAL FIRE staff do not visit the evenage units to personally walk around to examine all of the oaks that will likely be removed to judge whether or not those trees are or are not “wildlife habitat.” Furthermore members of CAL FIRE staff are not professionally capable of making such a judgment. In reality every mature oak is wildlife habitat because every oak provides acorns, provides nesting capacity for songbirds and woodpeckers, and provides shelter for a wide range of species. IT IS UNREASONABLE AND WRONG FOR CAL FIRE TO SUGGEST THAT THERE IS A DIFFERENCE BETWEEN SOME OAKS THAT ARE “DETERMINED TO PROVIDE WILDLIFE HABITAT” AND OTHER OAKS THAT ARE NOT DETERMINED TO PROVIDE SUCH HABITAT. THERE IS NO SCIENTIFIC BASIS FOR ALLEGING THAT SOME OAKS DO NOT PROVIDE WILDLIFE HABITAT.
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It is frustrating to see CAL FIRE pour so much effort into attempting to justify SPI not be required to follow the Forest Practice Act requirement to retain an average of 10 square feet basal area of oak where it exists prior to the project. The many arguments provided in the May 30th response to the Porkchop comments indicate how aligned CAL FIRE is with supporting the status quo instead of assuring that legal requirements are met and that adequate levels of oaks are protected across the evenage treatment units that SPI routinely clears of almost all oaks. Page 174 and 175 provide generalized descriptions of how the THP will retain a wide range of habitat values provided by hardwoods by supposedly leaving oaks and hardwoods of all sizes. But no where in the THP does the document spell out how SPI will (1) meet the requirement to retain the average of 10 square feet of basal area of oak across the project acres or (2) how adequate numbers of large oaks that are most essential for wildlife will be fully protected and retained. CSERC urges CAL FIRE to reject this THP until it is revised to provide clarity on how an average of 10 square feet of basal area of oak will be retained and protected across each 40 acre block of the project boundaries and until large oaks that provide critical habitat are either all fully protected and maintained or that the vast majority are protected from project activities. Furthermore no approval of this THP should be allowed until SPI includes pre-project and post-project monitoring of oaks so as to allow the Director and the public to have accurate information as to how significant the impacts to oak resources are from the project.
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RECEIVED 08/13/17 (via email) Board of Forestry and Fire Protection
Dear Board of Forestry, Your cumulative effects assessment is sorely inadequate in relation to the effects of timber harvesting on water and endangered and other species thriving. I have seen first hand how logging has destroyed water quality in Elk River with the BOF maintaining that all the cumulative impacts of this THP have been mitigated to less than significant. What a loaded and miss-interpret-able phrase that is. We lost the use of Elk River as our water source[and it has always been our only source of domestic and agricultural water] declared by the agencies in 1997 [all due to sediment from logging.] 20 years later we are still getting worse and yet more logging is allowed continuing to degrade our water supply. You may be able to do fancy footloose math determinations with numbers from the industry creating the problem for people and fish but that in no way really encompasses all the cumulative effects. First your ability to define what is significant needs a better definition and understanding...when logging destroys residents only water source, that is significant. When logging continues to destroy water, fences, downstream residents' farms and homes and threatens their health and safety by cutting off their ability to live in and/or access to and from their homes at a much higher frequency and height that is significant. When these conditions continue to get worse for 20 years in the face of your so called "adaptive management" a very serious step needs to be taken to acknowledge the situation and deal with the severer consequences that logging has caused. Adaptive management may make logging better one baby step at a time but it does not address the severe consequences wrought onto others. That process could take a very long time as noted by the last 20 years of failure for BOF to deal with the severe consequences to direct downstream residents of logging in Elk River. These severe effects are not limited to the residents however; there is the deposition of huge added sediment in the Humboldt Bay which affects fishermen as well and anyone with a boat docked in the Bay. Fish survival is severely affected by high sediment loads in winter and now in summer as well as winter[see youtube video 2903: https://www.youtube.com/watch?v=ryu5UGBMuzA&feature=youtu.be] That plume has been going on for weeks now...the whole river is muddy for miles from it. Define what would be "significant" to BOF to realize severe and destructive cumulative effects of logging.[We residents in Elk River wonder what would be significant and we fully realize our lives,livelihoods and water are definitely not as the rules are interpreted today.] Define that when effects are severe and affect watershed residents health and safety that logging must be stopped till conditions are made normal again for those in danger. Mandate that plan proponents interview and follow up on downstream residents explanation of effects onto them from logging As Leslie Reid has said if you want to know what cumulative effects are go ask the people that have lived there a long time. And that means with real intent of action on the industries part to right the harmful
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situation they have created not just with more than words on paper that are supposed to improve logging. Realize that knowledgeable downstream residents information will be in a narrative form and is just as if not more significant that industry created spreadsheets. Spreadsheets created by the company do not show the long tern effects from before their data was taken. It can be and often is limited. When past projects have severely degraded water or air or carbon storage do not just dismiss that as "legacy" effects and set a new normal as you have been doing for years. They are all effects of logging and they all are part of cumulative effects. Take into account the economic, safety and security effects that all cumulative effects from logging have caused downstream residents and the surrounding community. An engineer has estimated a nearly 40 million dollar affect on the downstream community of Elk River yet every THP declares that all the adverse cumulative effects of this THP have been mitigated to significant...stop looking at a single THP against the backdrop at the time which has always allowed conditions to get worse because no single THP's effects are significant...to the BOF. More than words on paper declaring things are good to go needs to be done to even begin to address the cumulative effects of logging: Mandate actual water analysis effects from those directly affected Mandate actual carbon storage effects not fancy figures on growing trees but carbon storage in trees 60 years and older Mandate actual effects on people who live in the community Please interview those of us direct downstream residents on a yearly basis who have a thorough knowledge of the river and the land and the water quality to gain real insight into actual cumulative effects. Mike Miles may be on the BOF but he came to Maxxam at the end of their reign but has no long understanding of the effects of logging in Elk River. You need people who have an intimate understanding and real eye witness knowledge on the BOF or at least testifying before you; then heed what we say with the seriousness and gravity it deserves. If I'd had more time I'd been more precise. Thank you, Kristi Wrigley 2550 Wrigley Rd. Eureka, CA. 95503
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Received 8/14/17 (via email) Board of Forestry and Fire Protection
To whom it may concern, The citizens on Elk River have worked hard for 20 years in hopes that things would eventually get better for our water quality and access to our homes. Now we hear that there going to take the "regulations" enforcement requirements out of the timber harvest plans and make it a non-enforceable "guidance" practice. Things are getting worse for us; we are seeking tighter regulations not a personal opinions that benefit the timber industry. Your appointment should be to protect the citizens from harm and not favor the industry just for profit. We have been looking for some kind of help for two decades and it looks like it will be longer than my lifetime before things get better. Our property values decreases every year that Elk River continues to be clogged with the sediment, eliminating our domestic water (all domestic water delivered) and causing increased flooding, all created by and for timber companies profit. Please understand our situation, listen to the people who live with these conditions and hear the recommendations of the water quality staff and help us. If zero sediment is the order, then we are moving in the wrong direction. You can help us if you choose to. Thank you, Scott and Susan Keele 8080 Elk River Rd, Eureka, CA 95503 Scott Keele, PDW manager Humboldt County Office of Education 901 Myrtle Ave. Eureka, CA 95501 707-442-1825 wk/hm 707-445-7115 wk/cell 707-445-7180 fax www.hrop.org/wizard
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Jesse Noell and Stephanie Bennett
PO Box 7005 Eureka, CA 95502
Comment letter re: BOF Cumulative impacts rules
Monday, August 14, 2017
To Whom It May Concern:
“REASON IS NOT AUTOMATIC. THOSE WHO DEFY IT CANNOT BE PERSUADED BY IT.” ---Ayn Rand
CEQA requires project submitters to disclose potential significant impacts to reviewing agencies and the public, and to provide mitigation measures to prevent significant, avoidable environmental damage. Determining whether an impact is significant is critical because it determines whether an EIR must be prepared, while the type of impact and level of significance determines whether and to what extent a margin of safety is required, enforcement, implementation, contingency plans, bonding, mitigations, time schedules, and whether or not the entity that benefits from the creation of the impact will be held accountable for remedy of physical damage impacts, destruction of domestic water supplies, the creation of increased flooding, or financial damages.
CEQA as written, is reasonable. The proposed CI Rule package as written by Board of Forestry is neither reasonable or defensible. Instead, the proposed CI Rule package is designed to guide decisions while avoiding enforceable implementation, contingency bonding, mitigation standards, time schedule standards, accountability, or remedies for impacts. Remember: these enforcements are necessary to avoid impacts from predictable human behavior which means not all humans share the same moral compass.
Guidance without enforcement amounts to a prayer. And if uttering prayers on Sunday is insufficient to guide human behavior then why would the BoF believe that its prayers to timber operators would guide them effectively? Faith-based regulations are antithetical to democracy. While prayers may help us feel better, regulations force us to behave better. The timber industry does not need more prayers; is does need a correction in its moral compass.
As recent hate crimes in Charlottesville, North Carolina demonstrate, not all humans will follow guidance or prayer and in fact, some will even defy guidance if no enforcement exists…likely followed up by a prayer for forgiveness. There is no forgiveness for what this Board has done to Elk River.
Timber harvest operators are only human; they too have amply demonstrated that even with strict enforcement they will defy guidance and defeat attempts to
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be enforced. Like every teenager resistant to authority, the timber industry has figured out how to become so pesky to its custodian (BoF) that the custodian stops enforcing regulations just to avoid the hassle. How many parents can effectively take away a teenager’s cell phone without suffering enormously because of that enforcement? Obviously BoF’s need to exclude enforcement comes from a place of fear of reprisal from the very industry BoF is entrusted to regulate. I pray you all do a better job as parents.
To heck with enforcement! Why don’t we just post guidance rules on our streets and highways? As my 85-year old father became increasingly demented, he once drove the wrong way on a one-way street. When I pointed out the wrong way sign, my father said, “Oh, that sign is for all the other a**holes!” Apparently that’s also the attitude of the timber industry: guidance and rules be damned…we’re special! We can forgive one old man for being demented. We cannot condone an entire Public Trust agency for creating demented regulations.
As responsible parents (“custodians”) of our children, we offer guidance, but we apply enforcement to ensure a positive outcome. As responsible public citizens, particularly those of you entrusted to be custodians of the Public Trust, we must enforce regulations on human behavior otherwise only the bullies or the demented rule. As the destruction of Elk River amply demonstrates, lack of enforcement on human behavior results in devastation and big profits for a very few.
Thus Elk River is now filled with seven to nine feet of trash from logging. Not only does the timber industry refuse to clean up the mess that it, and only it, has intentionally created, the public taxpayers are now being asked to pay to wipe the demented rear of timber. Clearly the timber industry is either ignorant of its bad behavior or simply has no conscience. These are precisely the kind of humans (teenagers, miscreants, mental incompetents) that require enforcement to maintain a civil society. Where is the custodial parent as the naughty child continues to harm others?
The proposed CI Rule package appears designed to immunize those who benefit from the creation of impacts from accountability and to enable the infliction of harm onto this and future generations. BoF has offered no rational or even possible benefit to lack of enforcement. This Rule package is supposed to guide humans; but these timber humans have already demonstrated they don’t honor guidance and they don’t accept enforcement. Is BoF acquiescing to this form of tyranny because it’s safer than performing your duties as required by us, the Public? Either BoF is afraid of the timber industry or codependent with them. In either case, this board is corrupted and certainly not trusted.
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To the extent that sediment or peak flow nuisance conditions, associated with prior Plans, have manifested downstream of the Plan area, CDF needs to provide and rely on alternative, unbiased information for the determination of significance. The determination must eliminate the nuisance before harvest activity commences and identify a time schedule and funding source because Public Resource Code § 740 states “...shall determine, establish and maintain an adequate forest policy. to protect the soil, air, fish, wildlife, and water resources...” PRC § 4551. Because the CI Rule package is “guidance” and not “enforcement” the requirement “to protect the soil, air, fish, wildlife, and water resources...” is designed to be rendered meaningless. This abuse invites discretion to substitute for the mandatory language. To the extent that the CI Rule renders protection of the soil, air, fish, wildlife, and water resources to be lessened, present and future generations will be impoverished.
According to BOF, “The purpose of the proposed action aligns the impact analysis within the FPRs and current CEQA guidelines.” BOF intends to do so by by altering the requirement “to protect the soil, air, fish, wildlife, and water resources”. If the Legislature had intended this alteration, the Legislature would have done so. BoF continues to hide behind arcane legalese while saying nothing of substance. BoF has utterly failed to make a rational case for its position because BoF doesn’t incorporate public input.
BOF states “Pursuant to the APA, no state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a “regulation”. "Regulation" means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.”
BOF ignores the alternative where the ARB and CDF would analyze greenhouse gas emissions and wildfire spread impacts. This alternative would reduce costs for foresters while utilizing the vast monitoring and analysis systems that ARB and CDF&F already maintain and staff. These systems rely on highly specialized technical and scientific expertise far beyond what a forester has and are designed to be impartial and comprehensive. These impacts primarily affect all Californians.
BOF states: “For purposes of this section, past projects shall be limited to those projects submitted within ten years prior to submission of the THP Plan.” This rule is inane, based on vaporous balderdash. Wildfire spread, greenhouse gas emissions, sediment, and peak flow impacts are directly related to legacy impacts over at least the past 40 years. BoF is expected to understand this. This rule is also frivolous and cruel as it places ridiculous and avoidable impacts onto future generations. Timber harvest operators may be immune today but your
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grandchildren will not enjoy any benefits from that immunity; in fact, they will suffer physically and karmically. Explain your rule package to them now.
Comment: To limit information in this manner is unreasonable to the ordinary person, increases the bias of the determination, and unreasonably limits and constrains the analysis. The benefits obtained as a result of projects 10 to 50 years ago are part of a valid or robust analysis of cumulative impacts for air, climate change, water, fish, flooding, domestic supply, the fishery, and the impoverishment of future generations of Californians.
“B. The RPF shall Identify identify and give the location and description of any known, continuing significant environmental problems effects caused by past Past projects Projects as defined in 14 CCR § 895.1. The RPF who prepares the plan Plan, or the RPF’s sSupervised dDesignee, shall obtain information from plan submitters (timberland or timber owner), and from appropriate agencies, landowners, and individuals about past, and future land management activities and shall consider past experience, if any, in the assessment area related to past impacts and the impacts of the proposed operations, rates of recovery, and land uses. A poll of adjacent land owners is encouraged and may be required by the Director to determine such activities and significant adverse environmental problems on adjacent ownerships.”
Comment: a poll of downstream residents shall be required to determine if domestic water supplies were impaired, flooding increased, channel infilling occurred at any time following or during the operations on past plans. Rate of recovery type data must include prior harvest volume and stocking data for all plans during the past 40 years.
1. Impacts to watershed resources, pursuant to 14 CCR § 912.9 [932.9, 952.9] (c), within the Watershed Assessment Area (WAA) shall may be evaluated based on significant on-site and off-site cumulative effects on beneficial uses of water, as defined and listed in applicable Water Quality Control Plans
Comment: Beneficial uses of water as defined and listed in applicable water quality control plans have not proven sufficient to protect existing domestic supplies or salmonid breeding, feeding and growth ----It is inequitable not to list and poll residents who rely on existing supplies and to provide due process remedy when damage results….ditto for flooding or channel infilling, peak flow increase, decreases in summer flow, water temperature. Furthermore, the Federal Clean Water Act 303(d) TMDL process and antidegradation clause require a margin of safety sufficient to assure attainment of standards sufficient to protect existing uses. Because the FPRs have failed (in Elk River for instance) to protect domestic water
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supplies to the federal and Porter-Cologne standards since 1987, CDF needs to step in and conduct the monitoring and enforcement. If nuisance conditions exist at an intake the Plan must remedy the impairment and provide alternative supply, relief from flooding, etc. PRC 740, 4551
BOF states: “Situations where sediment production potential is greatest include: - Sites with high or extreme erosion hazard ratings. - Sites which are tractor logged on steep slopes. - Unstable areas. “
Comment: these sites have among the greatest potential to discharge suspended sediment in amounts deleterious;
-Sites where vegetative canopy is less than late seral are subject to increased effective rainfall, peak flow, and elevated pore pressure
-Sites with deranged hydrology or concentrated runoff including skid waterbars, rolling dips, collapsed soil pipes
BOF states: “While increases, if any however, are {likely to be small relative to pre-harvest natural peak flows, extensive canopy removal over a short period of time on a watershed scale can increase peak flow effects on streambank erosion, channel incision, and headward channel extension in erodible landscapes.”
Comment: the extensive canopy removal in a group selection area can be expected to result in large (up to100%) increases in effective rainfall and non trivial increases in peakflow, soil pore pressure, soil pipe enlargement or collapse, channel extension, rills and gullies on the GS area. To label these small, is misleading and demonstrates a lack of transparency, enables the professional forester to submit misleading information, and results in a bias determination that knowingly and purposefully externalizes harm onto downstream residents.
Sincerely,
Jesse Noell and Stephanie Bennett, Elk River residents
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Sent via electronic mailto: [email protected] on date shown
August 14, 2017
Dr. J. Keith Gilless, Chair California Board of Forestry and Fire Protection P.O. Box 944246 Sacramento, CA 94244-2460
RE: EPIC Comments regarding 45-Day Notice of Proposed Rulemaking for Amendments to Board Technical Rule Addendum No. 2 and Cumulative Impacts Assessment Checklist
Chair Gilless and Board Members:
The following comments are presented on behalf of the Environmental Protection Information Center (EPIC), Coast Action Group (CAG), Sequoia Forest Keeper (SFK), Battle Creek Alliance (BCA), and Ebbetts Pass Forest Watch (EPFW) (hereafter referred to as, “the undersigned organizations), concerning the Board of Forestry 45-Day Notice of Proposed Rulemaking for amendments to Technical Rule Addendum No. 2, the Appendix to Technical Rule Addendum No. 2, and the Cumulative Impacts Assessment Checklist (hereafter referred to as the “Proposed Notice”). The undersigned organizations appreciate the opportunity to provide comments on the Notice and respectfully requests written response to all points raised herein.
Summary
The Proposed Notice and accompanying Initial Statement of Reasons (ISOR), and proposed amendment text as presented betray a fundamental lack of recognition on the part of the Board of its statutory obligations under the Forest Practice Act (Act), Rules, and the California Environmental Quality Act (CEQA), and as borne out in well-established caselaw. Further, the Notice and associated constituent parts also betray a fundamental disregard on the part of the Board for now long-since established Legislative mandates and directives that to this point have been almost entirely ignored.
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To the extent that the Board, its staff, the Department of Forestry and the regulated-timber industry believe that simply modifying the Cumulative Impacts Assessment Checklist, Technical Rule Addendum No. 2 and the Appendix to Technical Rule Addendum No. 2 in the manner described and contemplated in the Proposed Notice and constituent parts are in any way sufficient in and of themselves to ensure attainment of mandates upon the Board, Department, and regulated industry pertaining to issues of climate change, reduction in greenhouse gas emissions, added sequestration of carbon dioxide, or as pertains to increases in wildfire risk related to timber management, and that somehow CEQA and the lack of thresholds of significance related to these resource areas of concern will salvage the status-quo and business-as-usual, we must inform you in no uncertain terms that you are mistaken on all counts.
Viewed in the best possible light, the Proposed Notice and constituent parts represent little more than a rearranging of the deck-chairs on the Titanic, and viewed in a more realistic and cynical light, are clearly an attempt by the Board and its staff to obfuscate and confound attempts at meaningful reform by allowing landowners, RPFs and Department staff to simply rationalize away issues related to these resource areas of concern through project-by-project qualitative unsubstantiated, “analysis,” and “consideration,” instead of promulgating actual Rules, regulations, and standards to “ensure,” that these areas are adequately considered and accounted for, which is what the FPA clearly demands.
The undersigned organizations oppose the adoption of the Proposed Notice and constituent parts on the basis of the following: (1) The Cumulative Impacts Analysis Checklist, Technical Rule Addendum No. 2 and Appendix to Technical Rule Addendum No. 2 are not, and should not be seen as substitutes for the adoption of actual Rules, regulations, and standards to constrain the regulated timber industry and its enabling Department of Forestry; (2) The amendments in the Proposed Notice fail to contain adequate standards to guide and constrain cumulative impacts assessment, and instead leave assessment of resource areas of concern to landowners and RPFs without expertise in those areas.
In lieu of adopting the Proposed Notice The undersigned organizations recommend that the Board fully initiate the investigative process called for in Assembly Bill 1504 (2010) and as codified at Public Resources Code 4551(b)(1) to evaluate and modify and/or adopt actual, Rules, Regulations, standards, and thresholds of significance to ensure that its Rules contain adequate standards, thresholds and constraints to reduce forestry-related emissions of greenhouse gasses while increasing the capacity and amount of carbon dioxide sequestration and storage in California’s private timberlands, so that California’s forests and its forest products industry can become part of the solution instead of continuing to be part of the problem as pertains to climate change. It is critical that Board rules be modified, so that the negative impacts of climate change are mitigated and so that California regulated forests become more resilient and continue to support the many co benefits including wildlife, native plants, biodiversity, water, and local economies, including tourism.
Background and General Comments
The Proposed Notice and ISOR for this rulemaking betray an astonishing lack of awareness and understanding of, or perhaps willingness to acknowledge, issues pertaining to evaluation of cumulative impacts related to private forestry activities and mandates of the FPA to
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ensure environmental protection, and issues pertaining to the realities of global climate change and State of California legal mandates imparted by the Legislature upon the Board, Department, and regulated timber industry as a consequence of the realities of global climate change. This posture of the Board, while not at all surprising given its history, is categorically unacceptable in the modern era where forestland productivity has been reduced to fractions of former potential under the watch of the Board and Department and the associated consequences relative to the great global crisis of climate change. The undersigned organizations herein provide brief background on the questions of analysis of cumulative impacts in private forestry, and the question of global climate change in relation to State-mandated targets and Legislative mandates imparted to the Board by the Legislature.
Background Surrounding Analysis of Cumulative Impacts and Private Forestry
The modern forest practice legal and regulatory framework is predicated upon the
harmonious nature and intent of the FPA and CEQA as firmly articulated numerous times over the decades by the courts of the State of California. CEQA has been referred to in State Courts as the “polar-star of environmental protection,” in California. (See: EPIC v. Johnson, 1985). The FPA of 1973 establishes a duel mandate for the Board, Department, and regulated industry to ensure, “the goal of maximum sustained production of high-quality timber products is achieved, while giving consideration,” to resources of concern such as air, water, soil, fish and wildlife, and now, sequestration of carbon dioxide. (See: Public Resource Code section 4513(b)). In both the instance of CEQA and the FPA, it is clear that the Legislature intended that environmental resources of concern would be protected, enhanced, maintained, and restored.
CEQA, unlike the National Environmental Policy Act (NEPA), is not merely an
informational statute, as it plainly calls upon the State, its agencies, and all entities carrying out “projects” that may have a significant adverse impact on the environment to avoid such impacts or incorporate mitigation measures to substantially lessen any identified potential impacts to a point of less-than-significant. This same basic intent and premise is also embodied in the FPA and the Rules of the Board. (See: Public Resource Code Section 21000(g), 21001.1, 21002.1(a), (b), 4512(b), 4513(b), Title 14, California Code of Regulations section 896, 897, 898.)
CEQA, and consequently, the FPA and Board Rules, require consideration, assessment, and either avoidance or mitigation of potentially significant adverse cumulative impacts on the environment. (See: Title 14 CCR 15130.). “Cumulative Impacts,” is defined at 14 CCR 15355 of the CEQA Guidelines: ““Cumulative impacts” refers to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.”
Modern-day assessment of cumulative impacts was the direct result of the 1983 lawsuit
EPIC v. Johnson, in which State Courts agreed that THPs and other projects approved by the Department of Forestry and pursuant to Board regulations were subject to all substantive and procedural requirements of CEQA from which the Legislature has not otherwise explicitly exempted the THP administration program. Nearly four decades later, the Board has still not acted to adopt actual Rules, regulations or standards aimed specifically at avoiding or substantially lessening potentially significant adverse cumulative impacts of private timber industry on the quality of the environment of the State in favor of perpetuating the guidance-
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based assessment of cumulative impacts now represented as the Cumulative Impacts Assessment Checklist (14 CCR 912.9, 932.9, 952.9), and Technical Rule Addendum No. 2 and the Appendix to Technical Rule Addendum No. 2.
This modern framework is predicated upon allowing the landowner and RPF to determine
the methods and standards and information sources to conduct an assessment of cumulative impacts and to use professional judgment in reaching their own conclusions about the potential for significant adverse cumulative impacts on the environment to occur; the Department and the public are thereby left to simply review and attempt to either corroborate or refute the findings of the landowner and RPF, with the CEQA “substantial evidence,” and “fair argument” tests as the metric and evaluation criteria. This approach is analogous to the Department of Motor Vehicles and California Highway Patrol allowing motorists to self-police and self-report speeding and other traffic infractions.
The undersigned organizations maintains that the Board is negligent in its duties to
ensure environmental protection and either the avoidance or mitigation to less-than significant, potentially significant adverse cumulative environmental effects of timber harvesting and related activities carried out pursuant to Board Rules and CAL FIRE administration of the THP program.
It should be noted that using this approach and framework, the Department has never, to
our knowledge, either found that a significant adverse cumulative impacts would occur as a result of implementation of a THP, or ever denied a THP on this basis. Yet, forestland productivity continues to be depleted by over-aggressive harvesting and local communities, economies, and infrastructure are crumbling, virtually every late-seral/old-growth forest associated wildlife species is either listed pursuant to State and Federal Endangered Species laws or warrants such, once-abundant coastal watershed salmon and steelhead populations have virtually disappeared, and every major river and stream system on California’s North Coast is listed as 303(d) impaired under the Federal and State Clean Water Acts due to excessive sedimentation with logging and timber harvesting as the primary anthropogenic causes. Still, there have never been, according to the Department of Forestry and/or the regulated industry it enables, a given individual THP that when combined with others, has resulted in a significant adverse cumulative impacts on the environment.
The sad, destructive history of private timber regulation in California under the modern
administration of CEQA and the FPA by the Department and Board Rules is that the lack of actual Rules, regulations, and standards to constrain the private regulated-industry in favor of the present-day “evaluation,” and “consideration,” framework instead of a framework of Rules and regulations that “ensures” protection of the forest and environment has failed all of California and all Californians, and has played a major role in creating the climate change crisis with which we are faced today.
Background on Climate Change and California Global Warming Solutions Act
Climate change is real, climate change is occurring, and climate change will have far reaching effects on our human and natural environment. As the Intergovernmental Panel on Global Climate Change (IPCC 2013) has concluded, “warming of the climate system is
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unequivocal, and since the 1950’s, many of the observed changes are unprecedented over decades to millennia.” This warming was primarily caused by heightened atmospheric concentrations of carbon dioxide and other greenhouse gasses unprecedented in the last 800,000 years. (Ibid.) Scientists presently estimate the level of greenhouse gas concentrations in our atmosphere to be in excess of 400-parts-per-billion, well above the 350-part-per-billion threshold recognized by most climate scientists as a safety threshold for planetary life-support systems; greenhouse gasses continue to be emitted into our atmosphere every moment of every day, all around the planet. The effect of continuing greenhouse gas emissions combined with the lag effect of those particulates already emitted but having not yet had an impact on the atmosphere will result in the further altering of the atmosphere, and consequently the life-support systems of the planet, endangering all life on earth, including human life as we know it.
For over a decade, California has embraced the reality of climate change and its
devastating impacts, and has taken a lead in undertaking extensive legislative and regulatory commitments to reduce emissions which contribute to climate change as well as for measures to adapt to the unavoidable effects of climate change.
In 2006, the State Legislature passed, and then-Governor Schwartzenagger signed, the
California Global Warming Solutions Act, which mandated California State and industry to reduce harmful greenhouse gas emissions contributing to global warming and climate change, back to 1990 levels by the year 2020. Last fall the State Legislature acted again by passing SB 32, which was signed by Governor Brown into law. SB 32 up’s the ante on greenhouse gas reductions by mandating a State-wide reduction to forty-percent below 1990 emissions levels by the year 2030.
In 2010, the Legislature also adopted AB 1504 (Skinner), which imparted a mandate
upon the Board of Forestry to ensure that its Rules, regulations and standards for the private timber industry were adequate to realize the industry’s contribution to attainment of State-wide greenhouse gas reduction and carbon dioxide sequestration targets, and established an interim carbon sequestration goal of 500 million metric-tons of carbon per-year. (See: PRC 4512.5, 4551.). To date, the Board has taken no action to discharge this Legislative mandate. Given that the interim 500 million metric-tons per-year target was tied to attainment of 2020 targets and not the more aggressive 2030 targets, the Board, and by extension, the regulated-timber industry are severely behind the ball on ensuring greenhouse gas emissions reductions and added carbon dioxide sequestration at rates sufficient to contribute to achievement of greater State-wide mandates and objectives.
Forests are our best weapon to combat the impacts of climate change. As the 2014 First Update to the AB 32 Scoping Plan (2014 Update) adopted by the California Air Resources Control Board (CARB) recognized, our forests “must be managed to ensure that they provide net carbon storage in the face of increased threats from wildfire, pests, disease and conversion pressures” and that “[q]uantitative planning targets must be set to increase net forest carbon storage in California in the near-term, mid-term, and by 2050 . . . Forest carbon inventory and assessments should be continually maintained and refined to support this effort, and appropriate measures, funding, and incentives must also be established.” (CARB 2014). However, to-date, the Board has done nothing to either evaluate its Rules or to undertake in any serious way a method for accounting for the balance between carbon dioxide emitted and that sequestered as a
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consequence of the activities of the private, regulated-timber industry it enables. What’s more, California’s Draft Forest Carbon Plan (January 2017), contains no mandates for emissions reductions, no measures to secure and ensure added forest sequestration and storage of carbon dioxide above and beyond the status-quo, and no repeatable means of assessing the carbon accounting balance between emissions and sequestration as a consequence of the activities of the private, regulated-timber industry.
In 2010 it was believed and even codified in statute, that the private, regulated-timber industry was a net-sequestration source of carbon dioxide in the State. (See: PRC 4512.5(b)). However, more recent research and investigation has uncovered evidence that this premise is, and always has been, incorrect.
While California’s forests have the potential to act as carbon sinks—sequestering more
carbon than they emit—today, California’s forests are carbon sources, emitting more carbon than they take in, according to the CARB assessment of California’s forest and rangeland greenhouse gas inventory. (Battles et al. 2014.) The same was found in an assessment of State forest carbon stocks conducted in Aboveground live carbon stock changes of California wildland ecosystems (Gonzales et al. 2015).
Despite the fiction spun by the private, regulated-timber industry and its enabling
Department of Forestry, the best available science now suggests that, due to industrial, plantation-style logging, California’s forests are emitting more carbon dioxide as greenhouse gas, than they are capturing and storing as sequestration. According to Battles et al. 2015:
“[B]etween 2001 and 2008, the total carbon stored in the forests and rangelands of
California decreased from 2,600 million metric tons of carbon (MMTC = 106 MgC) to 2,500 MMTC (Table 3). Aboveground live carbon decreased ~2% and total carbon decreased ~4%. Given our estimate of uncertainty (95%CI = ± 26 MMTC), a stock change of 100 MMTC represents a statistically significant loss of carbon at an annual rate of approximately 14 MMTC y-1.”
The majority of the decline in stored carbon dioxide in our forests (61%), noted in Battles et al. 2015 was caused by a reduction in the amount of carbon stored per area, i.e., fewer larger, older trees and forests with native ecological assemblages and structure, a primary consequence of industrial, plantation-style logging. Sadly, this comes as absolutely no surprise.
Concerns about the rapid depletion of California’s forests and the vast reductions in its
once-seemingly-limitless productive capacity have been around as long as there’s been a timber industry in the State. In 1992, Dr. Hans Berkhardt conducted an investigation into dwindling forestland productivity on what were formerly Louisiana-Pacific Corporation timberlands in Mendocino County, and found that total forest biomass had been reduced to at-best ten to fifteen percent of pre-European contact estimates. (Burkhardt 1992).
The loss of forest biomass and the shrinking of California’s forestland productive
capacity can easily be tied to the Board’s long-standing failure to adopt adequate Rules and standards to ensure that the core principle of the FPA is achieved; attainment of Maximum Sustained Production of High Quality Timber Products on a given ownership. It took the Board nearly 20 years to adopt any Rules or standards to govern and ensure attainment of MSP, and
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those only as a result of litigation; today, the Board Rules governing MSP at 14 CCR 913.11 [933.11, 953.11] continue to allow for overharvesting and forestland productivity depletion, particularly on large “industrial” ownerships of 50,000-acres and greater. No clearer example of this exists than the plain-as-day disparity between MSP option-(a) for landowners 50,000-acres and greater, and MSP option-(b) (Sustained Yield Plan).
First, the Board has never at any time created a definition for, or promulgated any Rules
or standards to ensure that attainment of MSP on a given ownership results in furnishing of “high-quality timber products.” Second, MSP option-(a) perpetuates the same failures as the Cumulative Impacts Assessment and associated Technical Rule Addendum and Appendix by leaving it entirely up to the landowner to determine the level of MSP and methods of attaining MSP, with no clear measures to allow the Department, or the public-at large, to review, monitor, evaluate, constrain, or otherwise ensure that MSP and the furnishing of “high-quality timber products” is realized on ownerships of 50,000-acres or greater when utilizing that option.
The result is that forestland productivity, and, by association, total forest biomass and the
capacity of our forests to capture and store or sequester carbon dioxide from the earth’s atmosphere, are at their most compromised at the most inopportune moment in human history.
Specific Comments Regarding the Proposed Notice
(1) The Proposed Notice and Rulemaking are not a Substitute for Rules, Regulations, and Standards
The Proposed Notice and rulemaking are not and should not be seen as substitutes for Board
responsibilities to promulgate Rules, regulations, and standards to guide and constrain private timber harvesting and industry and to ensure environmental protection through these. The entire notion of a Technical Rule Addendum in place of promulgating actual regulations is quizzical at best. In fact, the undersigned organizations are unaware of any other State Agency responsible for promulgating Rules, Regulations, and standards that utilizes a Technical Rule Addendum to do so. In reviewing programs of other State Agencies, EPIC was unable to find a single other agency or Board that either makes reference to, or that utilizes a Technical Rule Addendum in place of actual Rules, regulations, and standards. This naturally begs the question, what is a Technical Rule Addendum? Further, it also begs the question, under what statutory authority was the Technical Rule Addendum framework for cumulative impacts assessment adopted and under what authority does the Board believe it can rely upon a Technical Rule Addendum instead of actually adopting clear and enforceable Rules, regulations, and standards?
The California State Legislature has not, to our knowledge, created a framework within the FPA that allows a regulatory scheme that is guidance-based and that allows timberland owners and RPFs to create and offer their own standard of information, analysis, assessment, consideration, and most importantly, conclusions; all of these are clearly the responsibility of the Board and Department, based on plain reading of relevant statute as cited above. While the modest changes to the cumulative impacts analysis checklist to make plain the fact that cumulative impacts assessment is a regulatory requirement is an improvement, it also betrays a fundamental failure, on the part of the Board and Department as the regulatory entities with
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technical expertise and legal responsibilities to regulate and constrain the activities of the private timber industry, to effectively regulate and constrain through the promulgation of actual Rules.
In this specific instance as pertains to the purpose and need for the Proposed Notice and
rulemaking it is expressed that the action is proposed in order to discharge legislative requirements for consideration of greenhouse gas emissions and to assess potential increases in fire risk from anthropogenic activities; at present, the actual FPRs do not contain Rules, regulations, standards, or thresholds of significance or either of these resource areas of concern. The Proposed Notice and rulemaking would perpetuate the same errors of the Board of the past by simply requiring “consideration” by timberland owners and RPFs, and allowing these entities to make determinations about methods, outcomes, and needed constraints, without the Board even establishing side-boards as regulations against which to evaluate the process and outcomes attained by timberland owners and RPFs, and without adopting thresholds of significance to allow for the Department and the public at-large to have criteria against which to measure, evaluate, and/or constrain the activities of private timberland owners.
In 2010, the State Legislature imparted a very clear mandate upon the Board to evaluate its
Rules and regulations for private timberlands to ensure that these are adequate to realize increased sequestration of carbon dioxide sufficient to meet or exceed state-established GHG and carbon sequestration mile-posts established pursuant to AB 32, the California Global Warming Solutions Act of 2006. To date the Board has completely ignored this mandate. Consequently, the Proposed Notice and rulemaking are insufficient because they do not propose to adopt Rules, regulations, standards, and thresholds of significance aimed at discharging this Legislative mandate. Unless and until this is done, the Proposed Notice and rulemaking, if adopted, would at best require cumulative impacts analysis for GHG reduction, carbon sequestration, and awareness of increases in fire risk potential, but would be utterly meaningless other than as the conduct of a qualitative paper exercise in the absence of commensurate Rules, regulations, standards, and thresholds of significance established by the Board.
(2) The Proposed Notice and Rulemaking Leaves to Discretion and Judgment of Timberland Owners and RPFs the Conduct of Analysis that may be Outside Professional Expertise
The Proposed Notice and rulemaking fail to contain adequate direction and specificity to
ensure a credible analysis is produced, and leaves to timberland owners and RPFs the ability to choose and create pathways to analysis and conclusions pertaining to resource areas of concern that are likely outside the professional expertise of many RPFs. For example, as pertains to assessment of GHG impacts, page 26 of 28 of the Proposed Rule Pleading under G for GHG assessment on lines 8-9 suggest that, “[a]ny one or a combination of the following options can be used to assess the potential for significant cumulative GHG effects.”
It is difficult to understand how the Board perceives this will be implemented in practice
without resulting in a clear lack of consistency of production, application, analysis, and outcomes that can afford the Department adequate regulatory checks and balances, or to allow the general public to have any confidence in the outcomes. Further, Public Resources Code section 752(b) plainly calls out that RPFs can only perform duties pursuant to an RPF license in areas which the RPF has expertise and in which the RPF is “fully competent as a result of training or expertise.”
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The undersigned organizations are unaware of any forestry school program in the State that offers a combination of mensuration, GHG assessment, carbon dioxide storage, and the assessment of these to determine if or whether a significant adverse cumulative impact may occur as a result of forestry operations as part of its curriculum. How, then can the Board impart through the Proposed Notice and Rulemaking a requirement of RPFs preparing THPs to conduct such an assessment, or allow RPFs to determine or combine pathways to attain this analysis and assessment?
The problem here, as articulated elsewhere herein, is the overall framework for cumulative
impacts analysis, whereby the Board leaves up to timberland owners and RPFs with vested financial interest in outcomes, but likely no expertise in analysis of cumulative impacts, to conduct such and analysis and postulate their own conclusion, which the Department and public at-large are then left to ponder without standards against which to measure the analysis, or any clear legal or regulatory recourse in the event these are deficient.
Conclusion
The undersigned organizations recommend that the Board shelve the present Proposed Notice and rulemaking effort and that it get down to the business of discharging its legislative mandates under the FPA to adopt Rules, regulations, standards, and quantifiable thresholds of significance pertaining to the affected resource areas of concern addressed in the Proposed Notice. EPIC further recommends that the Board, its staff, and the Department get on with the reality of climate change and the necessity to change the way forestry is conducted in California and begin to proceed on this premise instead of joining the pathetic climate-denial perpetuated by the regulated timber industry. Climate change and State-mandates to tackle climate change, make it clear that the time of the status-quo and business-as-usual are over in California; it is high time for the Board, the Department, and the regulated-industry to either get on board, or get out of the way. Respectfully Submitted,
Rob DiPerna Environmental Protection Information Center (EPIC)
Alan Levine Coast Action Group
Susan Robinson Ebbetts Pass Forest Watch
Marily Woodhouse Battle Creek Alliance
Ara Marderosian Sequoia Forest Keeper
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Works Cited
Intergovernmental Panel on Global Climate Change, Physical Science Basis. (IPCC 2013).
California Air Resources Board. (2014). First Update to AB 32 Global Warming Solutions Act Scoping Plan. (CARB 2014.)
Draft California State Forest Carbon Plan. (2017). California Natural Resources Agency, California Environmental Protection Agency 2017.
Battles et al. (2015). California Forest and Rangeland Greenhouse Gas Accounting Assessment, Prepared for California Air Resources Control Board. (CARB 2015).
Gonzales et al. (2015). Aboveground live carbon stock changes of California wildland ecosystems.
Burkhardt (1992) Maximizing Forestland Productivity.
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