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

Harvesting Woody Biomass in Kentucky – results of this summers biomass workshops. August 12, 2011

Three biomass harvesting workshops conducted by the UK Department of Forestry Extension in July attracted over 300 participants. Results of participant surveys and input from logging and woodland owner focus groups participating at the meeting provided valuable insight into how a woody biomass market and its harvesting are viewed by woodland owners and what opportunities and impediments exist for loggers.

Woodland Owners Sixty-five percent of woodland owners indicated that they thought that woody biomass harvesting might be in their future. Only 8.9 percent indicated that in no way, shape, or form would they allow the harvesting of biomass from their woodlands. Woodland owners clearly understood that woody biomass is a high volume product with little margin associated with its harvesting and transportation and therefore cannot be viewed as huge moneymaker. This was news to many woodland owners participating. However, it was also clear that a woody biomass market would provide opportunities for some low quality woods to be regenerated and/or improved commercially whereas only the availability of a government program would allow for this to occur now. Woodland owners also realized that the use of proper harvesting guidelines for woody biomass is important to maintain the health and productivity of their woods. These guidelines are currently under development by a committee developed by the Kentucky Division of Forestry.

Loggers While less than 10 percent of the loggers present were currently harvesting biomass approximately 60 percent thought that it might be in their future. When asked to rank a set of factors that might affect their interest in biomass harvesting the results was as follows: market prices and stability was their top concern followed closely by equipment cost. Government programs, loans, and workers compensation insurance were significantly less important.

Where Do We Go From Here? While woody biomass initiatives have not developed as quickly as many thought they might, there are some developments in Kentucky. The wood burning facility that is developing steam for industrial use in Louisville is under construction and will provide an opportunity for a few loggers. There is currently some biomass chipping going on for limited markets in the northeast and limited markets in western and west-central Kentucky. EcoPower’s initiative in Hazard Kentucky is still proposed and they are working hard to get agreements in place that will allow them to proceed with development. Their current timeline is wood procurement in 2012/13. But that egg has not yet hatched. When it does it will definitely provide and opportunity for loggers to bring in round wood (with similar specifications as pulpwood) to the facility. The plans are that most loggers would not have to have in-woods chippers.

The loggers that will be most able to respond to woody biomass markets are those that are able to skid whole trees and process small diameter wood like pulpwood. This requires mechanized harvesting, grapple skidding or forwarding, and mechanized delimbing. This can and has been done in steep terrain, but there will minimum acreage requirements that will be dictated by terrain and location that may limit some woodland owners from benefiting from a woody biomass market. Further haul distances will be critical. Haul distances from the woods will probably remain in the 50 or 60 mile range and will probably be relegated to high capacity hauling with 18 wheelers.

So we are still generally in a holding pattern. BCAP rules for woody biomass have still not come out and no large scale woody biomass initiatives have developed. Regardless, the potential is still there and loggers and woodland owners should stay tuned for developments over the next 1 to 3 years.

EPA – Haul Road Ruling Clarification - Sort Of. August 11, 2011

Clarifications have begun to emerge relative to the recent decision in the NEDC vs. Brown case by the Ninth Circuit US Court of Appeals (Ninth) removing the silvicultural exemption from the Clean Water Act associated with constructed logging roads in this region. This ruling opened up the possibility of classifying forest roads (as generally defined as constructed harvesting roads that collect storm water runoff, channel it, and deliver it directly or indirectly to streams and rivers) as a point source of pollution nationwide, thus requiring permitting (general or otherwise).

In May, 44 members of congress submitted a letter to Lisa Jackson, EPA Administrator indicating their concern over the ruling, how the EPA may respond, and requesting that the EPA reaffirms that the BMP approach to managing runoff from responsible forest management is the appropriate response to take in lieu of the Ninths ruling (Kurt Schrader_Letter to EPA).

EPA’s response dated July 1, (EPA_Response Letter) while not directly reaffirming the BMP approach as a blanket response dealing with forest management runoff it did so indirectly and did provide some clarification on the definition of forest roads that was encompassed by the Ninth’s ruling. The latter was helpful for Kentucky. The EPA indicated that the ruling pertained to constructed logging roads that intentionally diverted muddy water runoff into ditches, channels and culverts that directly flowed into waters (streams, rivers, etc.). Further the EPA acknowledged that forest road standards (BMPs) that provided for stormwater flow diversion onto porous forest soils for infiltration so they do not flow into waters were not covered by the Ninth’s ruling. Further the EPA indicated that if logging roads were properly located, designed and maintained to meet the criteria provided above they would not fall under NPDES (National Pollutant Discharge Elimination System) permitting jurisdiction.

So What? This indicates that Kentucky’s current Forestry BMP minimum criteria and recommendations, if adhered to would allow forest and logging road construction and use (under most common circumstances) to be undertaken without permitting (NPDES). It is critical that in all materials, including educational and administrative products, clear wording indicates the need for construction, maintenance and use of forest and logging roads to provide for water control that results in the deposition of stormwater runoff onto porous soils including forest soils and avoids delivery of stormwater runoff directly or indirectly (i.e. through a ditches or ephemeral channels) into waters (streams, rivers, etc.). Surface water occurring from seeps and springs that naturally flow into other waters can and certainly should be allowed to continue to drain directly into streams and other waters and provisions should be used allow for proper crossing of these surface flows. Logic would indicate that we continue to stress this in KML logger education and training and in KFCA timber harvesting inspections.

There may be other ramifications of this ruling that will emerge both within the Ninth’s region and beyond. It certainly would be prudent to ensure that in Kentucky we are developing and maintaining proper BMP use and keep abreast of information coming from EPA either directly through policy change or indirectly through changes in regulatory response.

KY Forestry and Water Quality Permits?



Best Management Practices are
required to be used on commercial
timber harvests in Kentucky
and many other states.

Kentucky Loggers and Woodland Owners Can You Say "Permit"?
May 11, 2011

Background
The recent decision in the NEDC vs. Brown by the Ninth Circuit US Court of Appeals (Court) has been widely distributed throughout the forestry community in the U.S. It functionally removes the silvicultural exemption from the Clean Water Act (CWA) and determines that forest roads that collect storm water runoff, channel it, and deliver it directly or indirectly to streams and rivers are a point source of pollution. This requires that logging operations that contain forest roads (see Kentucky Situation below) would be required to have a discharge permit. However, additional judges on the Court will be hearing (rehearing) this case and until that time the ruling will not take effect. Of course the Ninth District Court does not cover KY. However, the EPA has indicated that if the appeal is denied it will have far reaching effects. Reading between the lines, silvicultural activities or at least activities that create and/or use forest roads would potentially be required to have a discharge permit nationwide. While this clearly impacts logging it could also be interpreted to include woodland owners that have woods roads.

There are several means by which this permitting can be achieved. This includes a general permit that is developed by the state requiring the use of specific practices or requirements and this is probalby how this permitting would be handled. Until the general permit has been developed or if it is not handled this way each logger would need to obtain a permit for each logging job what would construct roads that would potentially impact water. The same could potentially be true for woodland owners. In either case the States water quality agency, in Kentucky the Kentucky Division of Water, would have jurisdiction over forest road issues.

Kentucky's Situation - Loggers and Woodland OwnersTo truly understand the potential impact of this ruling on Kentucky logging the definition of forest road should be understood. In Kentucky we differentiate between a haul road and skid trail. However, in situations where the skid trails are constructed with a dozer by cutting into a side slope, or where an old retired woods road is used as a skid trail or haul road these situations would be classified as a forest road by northwest standards (which is where the Ninth Circuit Court is located). Further it is not inconceivable that skid trails developed by significant skidder trafficking that creates disturbed mineral spoil over its entire width and that collects water would be considered a forest road. Since Kentucky logging is predominately ground skidding (which is true for much of the eastern U.S.) requiring the development of haul roads and constructed skid trails, and the majority (over 88 percent) of the logging jobs encounter streams or drainage channels (ephemeral channels) indicates that the majority of Kentucky’s loggers and logging jobs might required a discharge permit.

Also woodland owners that have forest roads that are trafficked would potentially be subject to the requirement for a discharge permit. This could occur whether you are actively using a road or are allowing a road to be used during a timber harvest for skidding or hauling.

Moving Forward ... or not?
It is prudent for Kentucky’s woodland owners, forest industry, and loggers to be attuned to the developments in this case. The outcome of the Court’s rehearing is uncertain at this time as are potential changes in EPA regulations, not to mention hearing by other federal district courts or the US Supreme Court. However, this is a significant enough case that preliminary discussions within the forestry community and between the forestry community and effected agencies such as the Division of Water would be justified.

To get more information on this issue Google "Ninth District Court of Appeals Forest Road Ruling" or other similar keys words on this issue and check out the following:

NEDC v. BROWN.pdf (the Ninth District Appeals Court Case)

Stormwater Discharges from Logging Roads Require Clean Water Act Permit. pdf (a good summary from a law firm out west)

By Jeff Stringer
Professor of Hardwood Silviculture and Forest Operations
University of Kentucky, Department of Forestry, Extension

Peer Reviewed, A. Stainback, May 11, 2011

Bush Honeysuckle Control Demonstration Areas

Learn some of the ways that you can combat this invasive plant that is a threat to Kentucky forests by checking out the demo areas!

If you happen to be in Lexington, KY plan to stop and visit the bush honeysuckle control demonstration areas that have been set up at McConnell Springs, Raven Run, and the Arboretum.

UK Forestry Extension Wins National 2009 Family Forests Education Award

The University of Kentucky's Department of Forestry Extension has been named winner of the 2009 Family Forests Education Award presented each year by the National Association of University Forest Resources Programs (NAUFRP) and the National Woodland Owners Association. There were nine nominations from across the United States. The 2009 award was announced at the annual meeting of NAUFRP held prior to the Society of American Foresters convention in September 2009. Special recognition was given to the Kentucky Woodlands Magazine.