Riparian Protection Rule Analysis Update

1. Riparian Protection Rule Analysis Update Oregon Department of Forestry “Stewardship in Forestry”

2. Presentation Purpose • Context and Background: Review Board Work on Riparian Protection Rule Analysis • Analysis and Discussion of the concept Maximum Extent Practicable • Recommendation and Decision Board of Forestry Meeting, John Day, Oregon, Nov. 7, 2012

3. Context: Board Goals and Vision • Supports an effective, science-based, and adaptive Oregon Forest Practices Act (FPA) to maintain its credibility and the social license to practice forestry • FPA includes a set of BMPs to insure that forest operations are conducted to meet state water quality standards • Continuous learning, evaluating and appropriately adjusting forest management policies

4. Background: Board Work • November 2010 / January 2011: Board directed the department to make water quality policy a high priority, including Riparian Function and Stream Temperature (RipStream) project. • November 2011: Board reviewed science findings of RipStream, and decided to consider the implication relative to the state Protecting Cold Water (PCW) criterion.

5. Background: Board Work • January 2012: The Board reviewed their authorities for riparian protection standards. • The Board determined that there is monitoring or research evidence that documents degradation of resources. • The Board directed the department to begin a rule analysis process that could lead to revision of the riparian protection standards.

6. Background: Board Work • January 2012: The Board determined that the analysis involved the type of rule, which requires a “714” analysis. • The Board directed the department to work with stakeholders to develop a plan for developing alternatives, including nonregulatory approaches, based on available scientific information.

7. Background: Board Work • April 2012: The Board approved a plan for developing alternatives, including a timeline on findings (an “informal checklist”). • The Board also defined the rule objective: “Establish riparian protection measures for small and medium fish-bearing streams that maintain and promote shade conditions that insure, to the maximum extent practicable, the achievement of the Protecting Cold Water criterion.”

8. Background: Board Work • July 2012: The Board found that the department had developed an appropriate range of initial alternatives, including non-regulatory approaches. • The Board directed the Department to move forward with the riparian rule analysis, using the approved range of alternatives.

9. Context: Where we are in Process

10. Context: Additional steps in Process

11. Analysis: “714” Rule Analysis • ORS 527.714 creates a rational approach to rulemaking to ensure that rulemaking will not be arbitrary or capricious: • identifies the types of rule for which the Board has authority • defines a set of findings that must be met if the rule directly affects forest practice standards • specifies the content of a comprehensive analysis of the economic impact of a proposed rule

12. Necessary Findings – ORS 527.714 (5) • Certain rules must meet evidentiary criteria: • monitoring evidence of resource degradation • rule reflects available scientific information • objectives clearly defined and restrictions on practices substantially advance the objective • consider alternatives, including non-regulatory approaches, and chose “least burdensome” • resource benefits achieved are proportional to the harm cause by forest practices

13. Analysis: Best Management Practices to Maintain Water Quality • ORS 527.765 directs the Board of Forestry to adopt Best Management Practices (BMPs) that insure forest practices – to the maximum extent practicable – “do not impair the achievement and maintenance of water quality standards established by the Oregon Environmental Quality Commission.”

14. The Relationship between Water Quality Rules (ORS 527.765) and Rule Making Process (ORS 527.714) • The two statutes are not in conflict and can be viewed harmoniously • 765 directs the Board to adopt BMPs that insure forest practices – to the maximum extent practicable – meet EQC standards • 527.714 creates a framework of evidentiary criteria that must be met before new forest practices rules can be adopted by the Board

15. Rules and Maximum Extent Practicable (MEP) • Under 765, any water quality BMP must meet the MEP standard • Additionally, may be more than one alternative to the proposed BMP that meets the MEP standard. • 714 states that the BMP selected must be the least burdensome to landowners that still meets water quality standards

16. Meaning of MEP: Term of Art • DOJ indicates that MEP could be viewed as a “term of art” from Clean Water Act • Although the MEP standard is in broad use in federal law, its meaning remains largely undefined. • In CWA context, courts have tended to avoid defining it precisely, which leaves decision-makers flexibility in applying it in practice.

17. Meaning of MEP: Function of Dictionary Definitions • Webster’s defines “maximum” as “greatest in quantity or highest in degree attainable.” • Webster’s defines “practicable” as “possible to practice or perform: capable of being put into practice.” • However “practicable” is less broad than the concept of “possible.”

18. “Possible” vs. “Practicable”

19. Interpreting MEP for this Rule Analysis • Past Boards have decided not to develop specific rules defining MEP. • At January 2012 meeting, the Board chose to follow a similar approach and develop a working definition for the concept of MEP for this rule analysis. • DOJ indicates that the Board should treat MEP as an independent criterion that any adopted BMP must meet.

20. Interpreting MEP for this Rule Analysis • Board has flexibility in applying MEP in practice, what can be done to the greatest extent feasible, using currently available scientific information and methods. • In this case, the Board must evaluate whether a BMP meets the “maximum” or “highest degree attainable” relative to the PCW criterion and is capable of being put into practice.

21. RipStream Analysis: Variability • Stream Temperature vs. Distance For Streams with a “Warming” Pattern (17 Sites)

22. RipStream Study Design Design: 33 study sites were established, 18 located on private forests and 15 located on State forests. 2 years pre-harvest, 5 years post harvest Treatment 1W Control 2W 3W 4W Downstream POINT OF MAXIMUM IMPACT

23. Study Design and the PCW • 3 reaches X 3 time periods = 9 groups 3W 1W 2W Pre-pre Pre-post Post-post 4W FLOW Upstream Control 614 comparisons total 65 exceedances Treatment Downstream

24. Best models for PCW 40.2% 4.6% Water Resources Research 2011

25. RipStream Results: Magnitude of Temperature Change Private sites post-harvest: + 0.7° C State Forest: 0.0° C Variability among sites

26. Evaluating whether a proposed BMP meets MEP for this Rule Analysis • Does a proposed BMP meets the PCW criterion to the maximum extent? • When the BMP is applied across a number of stream reaches, the frequency of exceedances would not be significantly different than background level of exceedances, and • the average temperature increase of treatment reaches would not be significantly different than zero.

27. Recommendations – Meaning of MEP • Direct the department to use the following guidance on the meaning “maximum extent practicable” … : • “When applied, BMP(s) are expected to insure that harvest sites with Small and Medium Type F streams will not, on average and across the landscape, result in stream temperature increases greater or more frequent than can be expected under background conditions.”

28. Next steps in Process