Saga on Forest Road Permitting Continues

By Jeff Stringer




A forest road in Kentucky.
Photo courtesy Kentucky Department of Natural Resources.

Recently, the U.S. Supreme Court heard a case involving logging roads that challenged their exemption from storm water permitting. Up to this time the EPA has a rule that exempts silvicultural activities (including logging) from having to have a storm water permit. Several years ago an environmental group in the Pacific Northwest took Oregon’s state forestry agency and forest industry to court alleging that logging roads should be viewed as an industrial activity and not allowed to be part of the silvicultural exemption. While the Ninth Circuit Court that originally heard the case did NOT agree the Ninth Circuit Court of Appeals overturned the initial ruling and sided with the environmental group. The courts findings indicated that logging roads should be classified as an industrial activity and as such the EPA would have to require storm water permits for logging roads. If upheld by the Supreme Court logging operations in the Pacific Northwest would have to deal with permitting. Further, environmental organizations in all other regions of the U.S. would follow suit and litigate logging road exemptions. To-date EPA has indicated that they have not wanted to require logging, including the building of logging roads, to obtain permits. The U.S. Supreme Court heard the case on December 3, 2012 and will rule within the next several months. However, the EPA threw a wrench in the cog when one business day before they issued a new ruling regarding this case. Everyone believes that the new ruling did not change anything significantly, i.e. the EPA still does not believe that logging roads are an industrial activity. However, the fact that EPA came out with a new ruling did not give anyone time, including the Justices, to review it before the hearing. Due to this anomaly it may be a possibility that the Court throws this issue back the Ninth Circuit. Christopher Reeves, Extension Forestry Associate with the Department of Forestry at the University of Kentucky, was at the Supreme Court for the hearing as well as present for debriefing with forestry policy makers. Most of these influential individuals indicated that regardless of the outcome there is a very good possibility that there will be continued litigation around this issue. For more background on this check out previous blog posts on the subject.



Christopher Reeves, Extension Forestry Associate with the Department of Forestry
at the University of Kentucky, was at the Supreme Court for the hearing.

Kentucky Forestry Technical Expertise Threatened

By Jeff Stringer

The loss of forestry technical expertise in the private and public sector continues in Kentucky. This is due to a number of factors the most important is the overall economy and softness of the timber markets.

Potential Budget Cuts to the Kentucky Division of Forestry

The state budget situation is at the heart of potential cuts to the Kentucky Division of Forestry (KDF). For several years KDF has been struggling with diminishing budgets and there is also the real possibility of further cuts to KDF. Secretary Peter’s recently indicated further budgetary reductions to the KDF that ultimately will result in a loss of personnel. This is due to overall reductions in state agency budgets. Regardless, there is little doubt that the reduction will result in the loss of services to landowners in Kentucky according to a number of interested citizens and organizations, most notably the Kentucky Woodland Owners Association. The KDF provides a wide range of services including tree seedlings, wildfire suppression, woodland management planning for landowners, logging inspections and forest inventory analysis. The KDF also provides education and awareness for woodland owners and urban forest owners. It is an important cog necessary for determining forest industry economic data and forest inventory information that is used by the feds and everyone in Kentucky that deals with woodland issues including the University of Kentucky.

In recognition of the importance of the KDF representatives of the Kentucky Woodland Owners Association and others met recently with the Kentucky Energy and Environment Cabinet leadership to express their concern and support for the KDF and the vital role they play in caring for Kentucky’s woodlands which cover 49% of the state. 

Loss of Consulting Foresters

Besides the loss of potential forestry capacity in the Kentucky Division of Forestry Kentucky has been faced with the loss of two consulting foresters in the last month. Pat Cleary owner of Highlands Forestry, Inc. was one the preeminent forestry consultants in Kentucky and the stalwart for eastern Kentucky landowners. Pat has provided services for a large number of landowners in eastern Kentucky for the last 20 years and was an active member of the Kentucky Association of Consulting Foresters and the Society of American Foresters. As of August Pat is state forest manager with the Indiana Division of Forestry. The loss of Pat was a result of the extremely poor timber market in eastern and southeast Kentucky. The most recent loss is Jim Funk and his company Forest Synergy, LLC., (www.forestsynergy.com) located in central Kentucky. Jim was long-time staff with the Kentucky Division of Forestry and has stayed active in forestry providing consulting services primarily in central and northern Kentucky. While he handled many forestry tasks he focused on providing landowners assistance with eastern redcedar.

Two out of 19 Kentucky Association of Consulting Foresters is a ten percent reduction in consulting forester capacity and in conjunction with the potential loss of KDF positions only exacerbates the problems faced by landowners in Kentucky that are needing their assistance.   

 

 

 

Annual Report of Kentucky’s Forest Inventory Released:  Forest area remains same, growth rate still greater than removal rate

Annual Report of Kentucky's Forest Inventory released
(www.srs.fs.fed.us/pubs/su/su_srs057.pdf).

According to a Forest Inventory Analysis (FIA) Factsheet recently released by the USDA Forest Service Southern Research Station, forest land in Kentucky covers an estimated 12.4 million acres.  The report – a compilation of data collected by the Kentucky Division of Forestry’s FIA program – also included information about forest composition, common trees, forest land ownership, standing-tree wood volume and average growth and removals.

“Kentucky’s forest resources have shown very little fluctuation since the previous annual inventory,” said Leah MacSwords, director for the Kentucky Division of Forestry.  The report notes that Kentucky’s forests are producing two times more wood volume than is being removed.  While wood-using industries have been affected by the slowing economy, Kentucky’s forests continue to “stand ready” for economic development opportunities in rural areas of the state. For more information visit www.srs.fs.fed.us/pubs/su/su_srs057.pdf 

Forest Road Case Reaches U.S. Supreme Court

By, Chris Reeves, Research Forester, UK Forestry Extension

 

The Supreme Court has granted the petition for the writ of certiorari and will hear the case of Decker v Northwest Environmental Defense Center regarding the Ninth Circuit Court’s overruling the silviculture exemption of the Clean Water Act.  Around 7,000 writs are delivered to the Court with an average of a little over 100 actually scheduled for oral argument.  That alone should illustrate how important this case is.  When the case was accepted several forestry groups and other organizations have already submitted briefs in support of the petitioners (Decker) to overturn the Ninth Circuit’s ruling including the Society of American Foresters, National Alliance of Forest Owners, American Farm Bureau Association, and the National Governors Association.

 

Previous blog posts have noted that the EPA had moved forward with clarifying the Ninth Circuit ruling stating that the EPA had no intention of regulating pollutants from forest road ditches directly draining into streams.  EPA’s planning is actually still moving forward in the event the ruling is not overturned by the Supreme Court.  But if the Supreme Court does overturn the ruling, the silvicultural exemption to the Clean Water Act that does not require permits for generated non-point source pollution from forest operation will be reinstated.

 

Oral arguments will take place on December 3^rd at the Supreme Court in Washington, DC.  Justice Stephen Breyer will probably recuse himself from the case because his brother ruled on the case as a Ninth Circuit judge but the other 8 judges will be present and will eventually rule on the case.  A minimum of 5 justices must decide to overturn the ruling because a 4-4 split reaffirms the lower court’s ruling.  The University of Kentucky is planning on sending personnel and students to view this historic forestry event in person.  The release date for the final Supreme Court opinion on the case traditionally does not get set but it is expected to come out in spring 2013.  Stay tuned for further details.

 

More information about the case can be found at the U.S. Supreme Court’s website and briefs can be found at the SCOTUSblog.

 

Supreme Court weblink: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-338.htm

 

SCOTUSblog weblink: http://www.scotusblog.com/case-files/cases/decker-v-northwest-environmental-defense-center/

Profitable Farms and Woodlands: A Practical Guide to Agroforestry for Landowners, Farmers and Ranchers

New resource on agroforestry is available.

A much needed practical guide in Agroforestry has been developed by a team of agroforestry specialists from the 1890 and 1862 Land Grant Universities and the USDA National Agroforestry Center (NAC), led by the 1890 Agroforestry Consortium. Retired UK Forestry Extension professor, Deborah Hill Ph.D. was one of the lead authors of the guide. The purpose of the guide is to assist underserved and limited resources farmers and woodland owners to adopt best management technologies in agroforestry. The guide depicts step-by-step methods and principles on developing agroforestry practices for farmers and woodland owners for the purpose of enhancing the economic and environmental benefits of their farms and woodlands. A copy of the guide can be found at www.ukforestry.org