BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: SB 455 HEARING DATE: January 10,
2012
AUTHOR: Pavley URGENCY: No
VERSION: January 4, 2012 CONSULTANT: William Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Forestry: watersheds: timber harvesting plans.
BACKGROUND AND EXISTING LAW
1. The Z'berg-Nejedly Forest Practice Act (Act) of 1973
(commencing with Section 4511 of the Public Resources Code)
prohibits any commercial harvesting of timber unless a timber
harvest plan (THP) has been prepared by a registered
professional forester and approved by the California Department
of Forestry and Fire Protection (CDF). Generally, a THP must
contain a description of the location of the planned harvest,
the harvest method, measures to avoid excessive erosion,
timeframe of operations, and other information required by
forest practice rules (FPR) adopted by the Board of Forestry
(Board). Most THPs from industrial landowners involve a few
hundred acres although the acreage can vary. The Forest
Practices Act contains various exemptions and provides other
requirements for lawful timber harvest operations.
The effective period of a THP is three years but may be extended
for two, one year extensions under certain conditions.
The California Environmental Quality Act (CEQA) covers timber
harvesting activities because discretionary permits from public
agencies are required and the activities have potential
environmental impacts that must be mitigated. However, instead
of an environmental impact report, the timber harvest
environmental review process is considered "functionally
equivalent" to CEQA pursuant to the CEQA Guidelines. As such,
approved applications are granted a THP and therefore do not
need to prepare an EIR.
2. Timber harvesting may also occur pursuant to a programmatic
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timber environmental impact report (PTEIR) in which an EIR is
prepared. Rarely used, a PTEIR could cover an entire large
ownership of commercial timberlands. Subsequent harvesting
activities could use the baseline document as the foundation for
subsequent harvesting activities. However, a PTEIR requires
subsequent harvesting to be authorized pursuant to a THP.
3. Small landowners of 2,500 acres who harvest trees through
uneven age management techniques (i.e., not clearcutting) may
harvest timber pursuant to a non-industrial timber management
plan (NTMP) that does not require a THP. Harvesting activities
are authorized pursuant to an expedited notice procedure.
4. Other timber harvesting activities are authorized pursuant to
a narrow range of exemptions from the normal THP process. Some
are complete exemptions and some are partial exemptions. These
exemptions cover such activities as the removal of dead and
dying trees, fuel reduction, and other specified actions.
5. Existing law requires permits conversion of timberlands into
non-timber purposes. THPs are required to remove the timber and
conversion permits are required for the change in land use.
Those permits do not expressly take into account the loss of
carbon or the foregone ability to sequester carbon into the
future nor is mitigation for that loss required.
PROPOSED LAW
1. This bill would create a voluntary, optional method to
harvest timber on a watershed (or multiple watershed) scale. The
permit would be called a Watershed Timber Harvest Plan (WTHP).
The overarching requirement of the WTHP is to maintain lands in
timber production and to ensure that those lands are managed in
a way that increases sequestered forest carbon and improves the
resilience of the landscape to climate change and naturally
occurring fires.
As a quick summary of the proposed law, the duration of
harvesting permits would be extended to 20 years and annual
operations would be triggered through a notice provision
(similar to those used in NTMPs). The various reviewing agencies
(CDF plus in most cases the Departments of Fish and Game,
Conservation, and a regional water quality board) would be
required to synchronize their permits to coincide with the
20-year term. The applicant would pay a fee of up to $100,000 to
pay for the initial environmental review of the WTHP. The
landowner would disclose all harvest activities planned over the
next 20 years with refined mapping every 4 years. Reports on
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attaining structural retention (trees remaining on the land for
habitat or other environmental purposes) goals would be filed
every 5 years. Also on a five-year schedule is the requirement
to report on planned harvesting activities, methods of harvest,
and other related items. Every two years, the landowner would
file a compliance report with CDF.
The bill would also impose a requirement that a landowner must
increase carbon stocks on the land to help mitigate the effects
of climate change. This must be demonstrated by the landowner
and conveyed to CDF every fifth year. Another provision would
require mitigation for the loss of carbon stocks for the
conversion of more than one acre of timberland into
non-timberland purposes.
2. The WTHP would include all information required by current
law for a THP, and in addition, specifically require mitigation
of environmental impacts to a less than significant level. All
other applicable provisions of habitat protection laws, water
quality laws, and all other provisions of state law that apply
to timber harvesting activities would not be affected and would
remain in effect.
The environmental analysis, although on a larger expanse of land
than historic THPs, would be required to contain sufficient
information that the need for further environmental review for
purposes of annual harvesting activities would not be needed.
However, the bill does allow plans to be amended in the event of
new information or if reviewing agencies discover compliance
problems.
A WTHP would cover one or more designated watersheds but would
normally not exceed 100,000 acres. Watersheds are already
designated in California and mapped by the Department of Water
Resources and that methodology is referenced in and incorporated
into the bill.
3. Additionally, three separate elements would be included in a
WTHP: a sustained timber production assessment, a fish and
wildlife assessment, and a watershed assessment.
The sustained timber production assessment would detail all the
relevant information about the composition of the forest
structure and how the proposed harvesting activities would be
consistent with the protection of wildlife, water quality,
carbon sequestration, and the projected economic activity within
a region.
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The fish and wildlife assessment must contain all the provisions
in the plan that address all wildlife and endangered species
issues. This assessment must disclose impacts to wildlife and
what management techniques will be used to retain necessary
forest structure for affected wildlife.
The watershed assessment and the planning assessment requires an
integrated analysis of all the potentially significant adverse
environmental impacts within a proposed WTHP. This analysis will
be on a watershed basis, or on a multiple watershed basis where
appropriate. This is assessment that will disclose erosion and
landslide risks, how the WTHP will comply with water quality
laws, a schedule for road repair, and related issues. This
assessment must also include a discussion of the range of
projected impacts of climate change in the region covered by the
WTHP.
4. As drafted, the proposed structural retention language is in
the fish and wildlife assessment. These provisions are subject
to future negotiations by the parties, but in their current form
would do the following:
A. Require an unspecified increase in the total volume of forest
carbon over the life of the permit and have these increases
demonstrated to CDF every five years.
B. Intent language that the structural diversity of the
landscape is enhanced and that the landscape becomes more
resilient throughout the area comprising the WTHP.
C. Mandatory retention of trees of specified sizes in each
clearcut harvest unit that is along a federal or state highway
corridor that could be as much as a mile wide. This retention
would vary depending on the topography of the specific corridor.
D. For other areas outside of the highway corridors, additional
retention requirements would apply. Two basic models would apply
depending on how the landowner plans to comply with the
retention requirements. Where retention is dispersed across the
landscape, it would be based on a per acre minimum that would be
based on a specific percentage of minimum stocking standards in
the California Code of Regulations. The author and the
stakeholders have not resolved the specific percentage at this
time.
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Where retention is to be aggregated into groups, retention would
be based on a minimum size within each harvest unit. Again,
those percentage numbers have been resolved as of yet.
5. The bill contains several provisions related to the agency
review and public availability of a proposed WTHP. The WTHP
would be reviewed by CDF and all of the other reviewing agencies
in a coordinated fashion. The public would be provided
electronic access to all documents. The review of the proposed
WTHP will be paid for by a maximum $100,000 fee paid by the
applicant. All of the reviewing agencies must agree to the WTHP
prior its approval. All of the reviewing agencies must
participate in comprehensive field review prior to approval of
the WTHP.
If after a regularly scheduled compliance review inspection, the
WTHP is found to be out of compliance, the director of CDF must
suspend the WTHP until it is brought into compliance either by
changes in operation or by an amendment.
At the tenth year, there shall be another full field review with
all of the reviewing agencies. If the WTHP is not in compliance,
the WTHP shall be suspended and the WTHP must be brought into
compliance or amended as provided in the Forest Practices Act.
The bill contains an appeals process for landowners whose WTHP
application is denied.
6. There are several provisions related to the notice of
operations pursuant to a WTHP. It must be filed 30 days before
operations, available to the public electronically, and must
describe all proposed operations for a period of 12-18 months.
The notice must also certify the operations will be conducted
pursuant to the WTHP and that there have been no substantial
changes or new information that would alter the information or
analysis of the WTHP. Minor deveiations from the WTHP as defined
in the Forest Practice Rules would be permitted with the
approval of the director.
Within 10 days of the receipt of the notice, the director shall
contact the reviewing agencies to determine if a field review is
necessary. Operations can commence provided that no reviewing
agency objects.
If there is an objection, the bill provides a mechanism for
resolving the objection, and in addition, the director may
initiate consultation among the reviewing agencies to try to
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resolve the dispute which, if successful, would then be
memorialized in an amendment to the WTHP.
At the point the notice is determined by CDF to be consistent
with the WTHP, the director is required to approve the notice.
7. The bill contains enforcement provisions that require the
suspension of the WTHP if persistent violations are detected,
the terms of permits are being violated, and other conditions.
While suspended, no operations pursuant to the WTHP may
continue.
8. After operations are completed, all areas on which operations
occurred must be inspected by CDF with one year.
9. Timberland conversions of greater than one acre shall be
fully mitigated, including the depletion of current and future
carbon stocks.
ARGUMENTS IN SUPPORT
According to the author, the bill has two purposes: First, it
should be possible to create a new voluntary approach to timber
harvesting that provides for improved environmental review,
reduced permitting costs to industry, and emphasizes forest
management that will help meet the state's climate objectives.
Second, California needs to ensure that biological carbon on the
state's timberlands is maintained into the future and that
mitigation is required for losses of current and future carbon
stocks when timberland is converted to other uses.
The author notes that the January 4, 2012 version of the bill
reflects the state of negotiations that have occurred over the
past two years, largely with industry representatives. The
Comments section reflects the remaining open issues that have
been flagged so far from specific stakeholders. Going forward,
the author is committed to continuing discussions on these
issues as well as working with the administration to ensure that
its agencies are comfortable with the technical issues in the
bill.
In general, the bill proposes a longer term permit that covers
more territory based on one or more watersheds and discloses all
logging activities that will occur over the next 20 years. The
larger geographic scope and more complete disclosure should
enable a more robust environmental analysis and reduce industry
permitting costs. State agency approval costs would be covered
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(at least in part) by a fee paid by applicants. The enrolled
lands would be managed for harvesting but also to increase
biological carbon and forest complexity on the landscape. This
approach would not be mandatory, but would be available on a
voluntary basis to the state's large timberland operations.
Pacific Forest Trust and The Nature Conservancy are co-sponsors
of the bill. In a joint letter, these groups not that the loss
of forests is a major source of carbon emissions amounting to
nearly 20% of global carbon emissions annually. They note that
the California Air Resources Board has identified preventing and
mitigating further loss of California's forests is a key element
of meeting California's emission reduction goals. SB 455 would
discourage conversion of timberland and when timberland is
converted, the bill would require full mitigation the climate
impacts. The mitigation requirement would apply only to
timberlands, not other lands that are not capable of generating
a commercial timber product.
In addition to mitigating the loss of timberland, SB 455 creates
a voluntary alternative to the current timber harvesting process
for landowners who are willing to commit to increasing forest
carbon stocks and retaining more complex forest structure than
otherwise required by current law. By extending the duration of
the plan and by disclosing operations over the 20-year period
while at the same time expanding a plan to a watershed scale,
the cumulative impact analysis will be improved and the
reviewing agencies and the public will be able to more
effectively evaluate and respond to the proposed permit.
Following this more robust environmental review, landowners
would be able to take advantage of a more streamlined annual
harvesting process coupled with regular monitoring, reporting,
and reviews.
These supporters recognize in their letter that elements of the
bill will continue to be discussed and negotiated with the
various interested parties.
The California Forestry Association has a support if amended
position. It is in basic agreement with the intended outcome of
the bill, and several key points requested by the timber
industry have been resolved in negotiations with the co-sponsors
over the past year or two and are reflected in SB 455. The
industry and the opposition agree that multiple issues remain
open at this point. The industry has its own take on the
structural retention questions and is keenly interested that the
bill recognize the retention that is required by numerous
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voluntary agreements. Several major timber landowners have
agreements with state and federal wildlife agencies such as
natural community conservation plans, habitat conservation
plans, and others. Additionally, the industry has raised several
technical questions about the various timelines and other
provisions in the bill, whether the schedules for reporting can
be compressed, and how the mitigation portion of the bill will
ultimately be written. The industry wants clarification on the
relationship the requirement to sequester additional carbon and
how that might relate to claims for carbon offsets under AB 32.
ARGUMENTS IN OPPOSITION
An environmental coalition consisting of Forests Forever, Sierra
Club California, and the Center for Biological Diversity have an
oppose unless amended position. These groups believe that the
bill, if intended to strengthen the state's approach to
sustainable forestry, should prohibit clearcutting. These groups
also state that the bill does not provide any specific
enhancements in the way cumulative effects are assesses by state
agencies. Of these groups, only The Center for Biological
Diversity has offered constructive comments. CBD asks for
clarification on the mapping provision to ensure that sufficient
specificity is provided of the areas that will be harvested. It
asks for clarification on when lands outside the ownership
covered by WTHP would be included in the environmental analysis
covered by the WTHP. It (along with the sponsors and the
supporters) recognizes that the current language on retention is
incomplete and it has great interest in making sure the final
retention language is acceptable. It asks for clarification on
the current language concerning making forests more fire
resistant that distinguishes between all tree removal as
compared to logging that legitimately makes forests more
resilient to natural fire.
The letter concludes by lamenting the budget cuts that have
affected the reviewing agencies of regular THPs and notes that
some of the issues still to be negotiated are significant enough
that the signatories desire the bill to be held in committee.
In a separate letter the Environmental Protection Information
Center also supports a ban on clearcutting, and wants stronger
language on cumulative impacts analyses.
COMMENTS
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The author, in communications with the opposition and the
supporters, has committed to continue negotiations with the
various stakeholders and it is evident that the bill will be
amended to reflect those discussions. Therefore, no amendments
are suggested by staff at this time. If circumstances require
it, the author has committed to returning the bill to this
Committee assuming it is approved in the Assembly.
SUPPORT
Pacific Forest Trust
The Nature Conservancy
California Forestry Association (if amended)
OPPOSITION
Forests Forever (unless amended)
Environmental Protection Information Center (unless amended)
Sierra Club California (unless amended)
Center for Biological Diversity (unless amended)
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