Appendixes



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Appendixes

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Appendix A Institutional Governance and Regulations of Forests and Water Many reservoirs and other water supply facilities are located on forest lands. Water managers depend upon runoff from upstream forests for water supply and power generation, creating a direct interest in forest management. Unlike land, water is not “owned” outright. Traditional concepts of property ownership and (or) rights do not apply well because water moves across landscapes. Justice Oliver Wendell Holmes wrote, “A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it” [New Jersey v. New York, 283 U.S. 336 at 342-44 (1931)]. The legal systems designed to allocate water apply to all forest lands - public and private. They authorize private use, but condition such use on recognition of general public needs, such as naviga- tion, water quality, and recreation. State statutes typically declare that the waters of the state belong to all the people of the state and that water rights are only a right to use water. WATER RIGHTS AND MANAGEMENT Three water law systems govern the right to use water in the United States - ri- parian, prior appropriation, and hybrid rights. Twenty-nine states follow the ripar- ian rule. Nine states follow the prior appropriation system. Ten states follow a hybrid of riparian and prior appropriation law. The remaining two states have unique code rules. These legal systems generally promote diversion and use of wa- ter for purposes of meeting human development needs. The basic water allocation systems are run by state water management agencies. Federal, state and local agen- cies and private organizations must obtain water use rights from the state agencies, except in rare instances. Federal Water Management Once water rights are obtained authorizing the use of water, this use is regu- lated and managed by a wide variety of federal, state and local agencies and private organizations under an equally wide variety of laws. The federal government is deeply involved in water development for multiple purposes including navigation, flood control, hydropower and irrigation. Federal investment focused on navigation and internal improvements in the early days. The Army Corps of Engineers initially built canals and levees for navi- gation. The Flood Control Act of 1936 directed the Corps to provide flood protec- tion to the entire country. The Corps maintains and operates 383 dams and reser- voirs. Many Corps projects built for navigation or flood damage reduction have 145

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146 APPENDIX A additional uses, such as hydroelectric power. The Corps was first authorized to build hydroelectric plants in the 1920s, and today operates 75 power plants, produc- ing one fourth of the country's hydro-electric power, making it the country’s fifth largest electric supplier [http://www.usace.army.mil/missions/water.html]. The management and operation of each Corps facility is controlled by the Congressional law that authorized it. The Bureau of Reclamation was created in 1902 to construct and maintain irri- gation facilities to store, divert, and develop water for reclamation of arid and semi- arid lands. With the construction of Hoover Dam and Grand Coulee Dam in the 1930s, the Bureau embarked upon several decades of major project construction (Reisner 1986). The Bureau is currently the largest wholesaler of water in the United States, bringing water to more than 31 million people, and providing one out of five farmers in the western states with irrigation water for 10 million acres of farmland. The Bureau is the second largest producer of hydroelectric power in the western states, with 58 powerplants generating more than 40 billion kilowatt hours, enough electricity to serve 6 million homes. Management and operation of Bureau of Reclamation facilities is controlled by the Reclamation Act itself, additional gen- eral statutes and specific statutes authorizing each project. Many of the large reservoirs in the United States were developed by private companies to generate hydroelectric power. The Federal Power Act of 1920 [16 USC 791-825] allows private development on navigable rivers subject to obtaining a federal license. State and municipal power utilities are also required to obtain federal licenses, typically for 50 years. The licenses for many of these projects are currently expiring. Fish and wildlife and other environmental concerns must be addressed during the renewal process before the Federal Energy Regulatory Com- mission. The Army Corps of Engineers, Bureau of Reclamation, and Federal Energy Regulatory Commission must comply with federal environmental laws such as the Endangered Species Act and the Clean Water Act in the operation and maintenance of the array of federal and federally licensed water facilities. Forest managers seek- ing to achieve fish and wildlife, water supply and watershed protection objectives have an interest in how water facilities are operated. However, management coor- dination usually occurs only in the context of one agency commenting on another’s management plans, participating in consultation under the Endangered Species Act or commenting in other regulatory proceedings. Only under the mandatory consul- tation and conditioning requirements of the Federal Power Act are land and water managers forced to actually agree upon operating conditions. Non-Federal Water Management Some states also own and operate water storage and distribution systems. The most elaborate of these is the California Water Project, the country's largest state- built water and power development and conveyance system. It includes pumping and power plants; reservoirs, lakes, and storage tanks; and canals, tunnels, and pipe-

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APPENDIX A 147 lines that capture, store, and convey water to 29 water agencies [http://www.water.ca.gov/nav.cfm?topic=State_Water_Project]. State statutes con- trol the purposes, operation and management of these systems similar to how fed- eral laws control the federal projects. Most municipal and irrigation water is provided by local or regional water ser- vice or supply organizations. While some of these providers are private companies, most are municipal corporations or specially designated districts. Private compa- nies generally are regulated by public utility commissions. The municipal corpora- tions often have elected or appointed boards and operate under municipal articles of incorporation and by-laws. These water supply organizations provide water for irrigation and municipal and industrial purposes. Some states authorize larger re- gional water authorities such as the Northern Colorado Water Conservancy District that provide water to irrigation districts and municipalities. Water Allocation Systems Under the riparian doctrine, owners whose land is along rivers and streams (ri- parian owners) have the right to use water from the waterway in a way that is “rea- sonable” relative to all other users. If water is insufficient to meet all reasonable needs, all riparians must reduce their use in proportion to their rights. Historically, non-riparians had no right to use water. Most states that follow the riparian doctrine have adopted statutes that require riparian landowners to obtain water permits and allow non-riparian owners to obtain permits as long as their uses do not harm ripar- ian rights (Getches, 1997). The prior appropriation system developed in the arid states of the west where much of the land was owned by the Federal government at the time of non-native settlement. In order to develop mines, farms and communities, settlers needed to divert water from streams and transport it to where it was needed to support devel- opment. The U.S. Congress legally severed water from the land in the 13 Western states [California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935)]. Settlers developed a system in which the first person who used water beneficially acquired the right to use the water forever as long as the water was not wasted and was used regularly. Historically, the only uses recognized as beneficial were commercial or consumptive, not uses of water in stream for scenic, recrea- tional, or fish and wildlife purposes. Water rights under the prior appropriation system depend on water usage, not land ownership. Permits are required to appro- priate water. Water rights are administered by state agencies (Getches, 1997). States also administer the permit systems that create water rights and generally enforce the rights between the various public and private water rights holders. When a water right holder seeks to change their water use, generally state approval of the transfer is required. The right to use water in prior appropriation states is forfeited if it is not used. This creates an incentive for water right holders to use as much water as they are authorized to whether they actually need it or not.

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148 APPENDIX A Other Considerations Land and water are inextricably linked, but the laws and institutions governing their use are not. Despite long recognition of the need to manage land use in water- sheds across ownership boundaries and across the jurisdictions of multiple layers of government jurisdiction, laws and institutions that truly integrate watershed man- agement have not been created. The fragmentation of ownership and jurisdictions, and the single subject mandates of most agencies, leads to fragmented, conflicting judicial decisions and management. Integrated watershed management (Chapter 2, Chapter 4) could mitigate the ef- fects of institutional fragmentation; it could also mitigate unintended consequences of cumulative watershed effects. Examples of the problems of fragmentation and cumulative watershed effects (Chapter 4) abound. Notable examples include an Army Corps of Engineer’s reservoir drawdown to build a temperature control tower that releases pesticides accumulated in sediments from decades-old U.S. Forest Ser- vice spraying; and multiple landowners deciding to harvest timber in a small water- shed during the same season, unaware of one another’s plans and their cumulative hydrologic effect. Due to fragmented jurisdictions, governments have been unable to create gov- ernance institutions at the watershed level. However, new community-based initia- tives and private markets are developing. These place-based voluntary approaches can create a civic space that nurture shared visions for the future of a watershed, implementation of action plans, and tools that knit land and water into an integrated whole for their management. REGULATION OF FOREST AND WATER USE Fragmentation of laws and institutions extends beyond forest and water ownership and management to regulation. Separate federal, state and local statutes and ordinances have been adopted to regulate effects of forest and water manage- ment. Table 3-1 shows the major regulations applicable to a timber sale on public or private lands, highlighting the complexity and single subject and single agency divisions facing forest land managers.

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APPENDIX A 149 TABLE 3-1Water-Related Regulatory Requirements for Timber Harvests Resource Non-Industrial Industrial Private Federal Public Land Issue Private Land Use Local Land Use Local Land Use Plan Land and Resource Plan and Zoning and Zoning Ordinance Management Ordinance Plan consistency Overall impacts State and local State and local forest NEPA: Prepare an envi- forest management management and ronmental assessment SFI/FSC requirements** or an EIS. regulations* Water Quality Clean Water Act Clean Water Act BMPs Clean Water Act: BMPs standards and guide- lines from plan Endangered No take of listed No take of listed species Avoid jeopardizing Species species listed species. Fire Prevention State and local State and local regula- Standards and guide- regulations tions lines from plan Wetlands 404 permit 404 permit 404 permit and 401 certification Herbicides, FIFRA FIFRA FIFRA Insecticides *SFI or FSC requirements may apply if the product is sold to a mill that requires the standards to be met. **SFI means Sustainable Forestry Initiative and FSC means Forest Stewardship Council. Both are forest product certification standards. Early Approaches Landowners cannot use their property in a way that injures their neighbors’ property. Landowners have historically been liable for damages caused by altering the course or amount of water flowing from their land onto adjacent properties and for creating nuisances by unreasonably interfering with their neighbor’s use and enjoyment of their property (Mortimer and Visser, 2004). As concerns grew about the impacts of forest management on hydrology, gov- ernments responded by adopting a wide variety of laws and regulations. In 18th and 19th century New England, timber harvesting and log drives destroyed many salmon runs (Montgomery, 2003) and hurt drinking water supplies. States re- sponded by enacting laws to regulate the impact of forest practices by prohibiting or controlling timber harvest in drinking water source areas and dumping of logging wastes in streams, requiring fire control, leaving of seed trees for reforestation and buffers around lakes and along rivers to protect scenery (Cubbage and Siegal, 1985). Laws regulating forest management now have been enacted at the federal, state and local level. Every forest landowner must comply with those applicable to its forest, requiring managers to follow multiple laws and regulations administered by multiple federal, state and local agencies.

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150 APPENDIX A Forest Practice Regulations The most comprehensive laws regulating forest management have been adopted by the states. The courts have consistently upheld the validity of govern- ment regulation of forest management to protect the public interest as long as it does not “take” all use of the property (Cubbage and Siegal, 1985). State forest practices laws were originally enacted in the 1930s and 1940s to require reforesta- tion in order to assure sustained timber production. In the 1960s and 1970s, with increasing concern about environmental issues, several states adopted broader laws aimed at assuring water and air quality, fish and wildlife habitat and scenic quality (Lundmark, 1995). While these laws vary greatly, they have now been adopted in one form or an- other in all 50 states. Comprehensive programs administered by a single state agency are referred to as forest practices acts. They are most common in western and northeastern states. Elsewhere it is more common for forest practices to be regulated by a variety of state agencies under multiple different statutes addressing everything from water pollution control to soil erosion to shoreland protection. All of the programs rely upon voluntary or regulatory best management practices (BMPs), sometimes called acceptable management practices, guidelines or forest practice rules. The programs take three basic approaches: (1) permit inspection systems re- quiring permits from state agencies before harvest or other operations (e.g., Califor- nia); (2) notification systems requiring notice to an agency before operations begin and compliance with adopted standards (e.g., Oregon); and (3) contingent systems in which failure to comply with adopted standards results in agency enforcement (Virginia) (Ellefson et al., 1995). A fourth approach requires loggers and/or profes- sional foresters to be licensed or certified. Licensing and certification require train- ing to assure that operators are familiar with BMPs. States with logger certification programs (Connecticut, Maryland, and WestVirginia), often also have enforcement programs with power to revoke a logger' s license to practice if BMPs are not fol- lowed (Irland and Connors, 1994). Most professional foresters apply BMPs (USEPA, 2005). State laws and regulations address multiple forest management practices and procedures. Examples of the practices regulated include: reforestation; silvicultural and harvest methods (like restrictions on clearcutting); road construction and main- tenance, slash management; fire; chemical use; and forest land conversion. Typical provisions related to effects on hydrology prohibit leaving slash in streams, require riparian buffers and specify road construction methods in riparian areas and on steep slopes. They often prohibit timber harvest in sensitive areas, like wetlands. Some states have explicit rules governing timber harvest and road building in wa- tersheds that provide drinking water. State forest practice regulations apply on private and public lands. Compliance monitoring is done in most states and surveys show that compliance is generally high. Compliance tends to be lower on private lands than public lands and lower on small private tracts than large industrial ownerships (Ellefson et al., 2001). This

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APPENDIX A 151 raises serious concerns as forest lands are urbanized or acquired by individuals or organizations unfamiliar with forest management. Recent studies conclude that non-industrial private landowners often lack knowledge about BMPs, especially in the southeast where studies show a lack of concern for forest water quality (NCASI, 2006). The Virginia Department of Forestry reports that most landowners make management decisions and sell timber without professional advice, which reduces BMP compliance. In Mississippi, nearly two-thirds of forest lands are owned by non-industrial owners, but a third of the owners were unfamiliar with BMPs (Londo, 2004). Studies comparing compliance rates under voluntary versus regulatory pro- grams are limited, as are cost comparisons. There is no direct evidence showing that compliance levels are better under mandatory rather than voluntary programs. Evidence does show that costs of both administration and compliance are higher with regulatory programs (Hawks et al., 1993). Due to federal regulatory developments and policy evolution at the state and local level, states traditionally relying upon voluntary programs have begun to adopt some mandatory regulations. States with comprehensive forest practices acts have also embraced many of the voluntary education and stewardship incentive programs developed by states with voluntary programs. Fundamentally, through regulatory and voluntary programs, state forestry and pollution control agencies have lead responsibility for protecting the public interest in controlling the effects of forest management on watersheds. National Environmental Policy Act and Cumulative Effects The National Environmental Policy Act of 1969, 42 U.S.C. 4331 et seq. (NEPA) requires federal agencies to carefully weigh environmental considerations and consider potential alternatives before taking major actions. The heart of NEPA is Section 102 (2)(C) which requires federal agencies to prepare detailed environ- mental impact statements (EISs) on any major action significantly affecting the quality of the human environment. Analyzing the environmental impacts of forest management practices on runoff and water quality generates considerable debate at least in part because of legiti- mate differences of opinion about the probable nature and extent of land-use effects on runoff, biological resources, water quality, and other values. One of the most difficult aspects of environmental impact analysis of forest practices relates to their cumulative effects across ownerships and over time in a watershed. NEPA requires agencies to consider “whether the action is related to other ac- tions with individually insignificant but cumulatively significant impacts,” 40 C.F.R. 1508.27(b). “Cumulative effects” mean: “the impact on the environment which results from the incre- mental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what

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152 APPENDIX A agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. 1508.7. Analysis of cumulative effects requires agencies to consider spatial and tempo- ral scales and identification of cause and effect relationships between multiple ac- tions and multiple resources. Two or more forest management actions, like timber harvests, can interact to produce magnified effects on ecosystem functions or other resources, even if each influence alone would have been relatively small or benign (University of California Committee on Cumulative Watershed Effects, 2001). As vital as it is to understanding watershed-scale impacts of forest management, federal forest management agencies have had difficulty doing cumulative effects analysis and their actions have often been challenged (Council on Environmental Quality, 1997). Timber sale appeals often assert that the agency’s Environmental Assessment or EIS is inadequate because the challenged sale is likely to have cumulative effects with other sales planned in a watershed. The USFS has developed Cumulative Wa- tershed Effects models to use in NEPA analysis. Cumulative Watershed Effects are “significant, adverse influences on water quality and biological resources that arise from the way watersheds function, and particularly from the ways that disturbances within a watershed can be transmitted and magnified within channels and riparian habitats downstream of disturbed areas.” (University of California Committee, 2001). The courts have addressed what projects are “reasonably foreseeable,” the trig- ger for requiring cumulative effects analysis. The general rule now is that it is in- appropriate to defer cumulative impact analysis to a later date when meaningful consideration can be given, but agencies are not required to do the impractical if not enough information is available to permit meaningful consideration, Environmental Protection Information Center v. U.S. USFS, 451 F. 3d 1005, 1014 (9th Cir. 2006). Although the courts have accepted the USFS’s major cumulative watershed ef- fects method, analyzing cumulative effects is difficult and the agency continues to be challenged successfully for inadequate application of its methods. For example, in Lands Council v. Powell, 379 F.3d 738 (9th Cir. 2004), the court reversed a deci- sion to implement an aquatic restoration project that involved logging. First it found that the EIS lacked adequate data about the time, type, place, and scale of past timber harvests and should have explained how different project plans and harvest methods affected the environment. A map showing past harvests, with gen- eral notes about total acres cut per watershed was not adequate. Second, the court found it arbitrary for the USFS to rely on a particular instream sedimentation model (the Water and Sediment Yields (“WATSED”) model) that it knew had limitations, without disclosing the limitations. Land-use signals may be hard to define in quantitative terms. Cumulative ef- fects continue to be of great concern to resource managers and regulators in forested mountain regions, where the goals of timber harvest may conflict with other social goals for water quality or biodiversity (University of California Committee, 2001). From the early days of NEPA implementation, the Council on Environmental

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APPENDIX A 153 Quality and others believed that NEPA analysis would be a way to assure integrated analysis of the effects of forest management actions on the environment. Earlier guidance urged agencies to integrate the NEPA process into other planning at the earliest possible time to ensure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts (CEQ, 1981). Despite widespread desire to integrate multiple environmental requirements, especially those under the Clean Water Act and the Endangered Species Act, with NEPA, no generalized method has been developed to do so. Instead agencies rely on case-by-case and agency-by agency coordination with varying decrees of suc- cess (CEQ, 2003). Clean Water Act Public concern about the effects of forest management on hydrology has fo- cused primarily on water quality. Congress attempted to control dumping into riv- ers and streams as early as 1899. This early law prohibited dumping logging slash and debris in navigable waters. But no comprehensive system of water pollution control existed until 1948 with the Federal Water Pollution Control Act. This Act was substantially amended in 1972 and 1987 and is now known as the Clean Water Act (CWA, 33 USCA, Section 1151 et seq., 1972). Its stated objective is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. It sets a national goal to attain water quality that “provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” 33 USC § 1251(a). The Environmental Protection Agency (EPA) has over- all responsibility for implementing the CWA. Congress intended the Act to be im- plemented by the states, and states may adopt stricter regulations. The CWA requires states to adopt water quality standards for all water bodies including rivers, streams, wetlands, lakes and reservoirs. The standards are de- signed to assure that water is clean enough to allow specific designated beneficial uses, such as human consumption or fish spawning. Numeric or narrative criteria are then adopted for various pollutants to protect the most sensitive of the desig- nated beneficial uses (usually fish spawning and rearing). Existing high quality water must be protected from degradation. New sources of pollution are prohibited in waters that already fail to meet the standards. Section 313 requires that federal activities must meet state water pollution con- trol requirements. Thus, timber harvest and other activities on federal forest lands must meet state water quality standards (Northwest Indian Cemetery Protective Association v. Peterson, 565 F Supp 586, aff’d in part, vacated in part, 764 F2d 581 (9th Cir. 1985)). The district court found that a proposed road and timber harvest on a National Forest would violate water quality (see Chapter 3) standards for turbidity and sediment and adversely affect the designated beneficial use of habitat and spawning for anadromous fish. The major method Congress created to control water pollution was to require point sources of pollution to obtain discharge permits, known as National Pollutant

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154 APPENDIX A Discharge Elimination System (NPDES) permits, before adding pollutants to waters of the United States. Generally, any discrete conveyance, such as a pipe or a ditch, is a point source. NPDES permits include permit conditions and prohibit discharges that would violate water quality standards. Most industries, wastewater treatment plants and stormwater systems now have NPDES permits. Non-point Source Pollution EPA regulations exclude from the NPDES permit requirement “non-point source silvicultural activities.” (40 CFR 122.27(b)(1)). Silvicultural point sources requiring NPDES permits are limited to discernible, confined and discrete convey- ances related to rock crushing, gravel washing, log sorting, or log storage facilities. Nonpoint source silvicultural activities do not require permits. They include activi- ties like site preparation, reforestation, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and mainte- nance from which there is natural runoff. Federal courts are now split on whether stormwater systems on forest roads require permits. Congress expected water quality impacts of silvicultural activities to be ad- dressed by state programs aimed at controlling nonpoint sources of pollution. Un- der the 1972 FWPCA states developed areawide water-quality management plans under Section 208. All states were to assess damages to water quality from nonpoint source pollution and to develop either regulatory or non-regulatory programs to control them. EPA turned to Best Management Practices (BMPs) as the way to address the water quality impacts of forest management. States adopted forestry BMPs in their 208 plans as a way to meet the goals of their water quality manage- ment plans, especially after passage of the Federal Water Pollution Control Act in 1977 (Ice et al., 1998). EPA defines Best Management Practices to be the methods, measures and prac- tices that prevent or reduce non-point source pollution. EPA recommends that to the extent possible, best management practices be implemented before, during and after forest management activities to reduce or eliminate the introduction of pollut- ants. BMPs generally are based on a substantial body of research; however, BMPs are incomplete or unknown for some forest management practices and/or in some regions. Most BMPs (required or voluntary) focus on minimizing sediment or tem- perature increases and dissolved oxygen from harvesting operations. Current BMPs cover a range of water quality effects and are routinely applied in categories similar to those under forest practices acts: streamside management zones with limited harvesting; clearcut size limits; site preparation and reforestation requirements; road building and skid trail location restrictions; high hazard site/steep slope restrictions to limit erosion and landslides; wetlands protections; and regulation of fertilizer and pesticide application (USEPA, 2005). The issues facing managers today relate to the adequacy of existing BMPs, particularly the need to measure and quantify re- sults of BMP implementation.

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APPENDIX A 155 Total Maximum Daily Load Allocations Section 303(d) requires states to identify waterbodies that fail to meet water quality standards. A "total maximum daily load" (TMDL) must be developed for each of the impaired waters. 33 U.S.C. 1313(d). A TMDL determines how much assimilative capacity exists in a water body and then allocates portions of that ca- pacity to point sources, non-point sources and a safety factor for future growth. Point source allocations are implemented through amendments to NPDES permits. Nonpoint source allocations are implemented through the Section 319 Programs. If a state fails to prepare TMDLs, EPA must prepare a priority list for the state and develop its own TMDL determination. Most states lacked the resources to do TMDL analyses, which involve complex assessment of point and nonpoint sources and mathematical modeling. The major controversy surrounding TMDLs is whether states can, or must, impose specific, quantified load allocations on non- point sources, like silviculture. The USFS protested application of TMDLs to forest management, arguing that forest practices would expose the agency to litigation over nonpoint source controls, and that BMPs, without specific limits on pollutants, were more appropriate (Houck, 2002). The National Association of State Foresters and the Society of American Foresters share this position. EPA has adopted rules, however, that require states to address nonpoint sources of pollution in TMDLs. The result of the TMDL program and these judicial rulings, however, has been that as point source dischargers face expensive compliance requirements in order to meet water quality standards under TMDLs, they advocate stronger state regulation of nonpoint sources, like silviculture, and seek mechanisms to meet their TMDL requirements by investing in nonpoint source controls if they are less expensive than further reductions in the point source discharges. This has prompted develop- ment of environmental service markets, as discussed below. Section 404 Wetland Regulations Wetlands are recognized by the CWA as an important and dwindling resource. A significant portion of freshwater wetlands loss occurs on forested wetlands (Dahl and Johnson, 1991). Forested wetlands are difficult to create or restore if they are lost (NRC, 2001). Federal policy is to prevent destruction of wetlands for anything but water-dependent activities or aquaculture. Anyone proposing to fill wetlands must obtain a permit from the U.S. Army Corps of Engineers under Section 404 of the CWA; EPA has review and policy-setting functions over both the Corps and the states (Want, 2006). “Waters of the United States” has been expansively interpreted and includes rivers, streams, lakes, estuaries and swamps or wetlands. In 2001, however, the Supreme Court held that “isolated wetlands” which are not part of, or adjacent to surface tributary systems, are not included. Even if federal jurisdiction extends to a particular wetland, Congress exempted “normal farming, silviculture and ranching

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156 APPENDIX A activities” from the permit requirement, 33 U.S.C. 1344(f)(1). The exemption does not apply, however, if the proposed activity is to change the land use and the reach of the water is reduced due to the change, 33 U.S.C. 1344(f)(2). The Corps and the EPA also interpret the exemption to require that silviculture be part of an “estab- lished, ongoing operation,” not for the conversion of wetlands to forest management (EPA, 1990 and 40 C.F.R. 232.3(b)). A separate exemption exists for constructing and maintaining forest roads and for activities regulated by approved best manage- ment practices under Section 208. These exemptions are important for forest management, especially in the south and in coastal areas, since conversion of farmland to pine plantations is a common practice. Since the land use is changed, the exemption does not apply. Removing vegetation to clear land requires a 404 permit if land levelling or substantial earth- moving occurs in wetlands. If earth is moved to replace an aquatic area with dry land, it is considered to be fill, and a permit must be obtained first. The Corps and EPA have issued special guidance on silvicultural site preparation activities regulat- ing when formerly agricultural lands are converted to pine plantations. Permits are required for mechanical silvicultural site preparation for nine types of wetland ar- eas, such as riverine bottomland hardwood wetlands, white cedar swamps and swamp forests (EPA, 1995), however, if BMPs are followed, no 404 permit is re- quired. If the wetlands have been so altered through past practices that they no longer function as wetlands, no permit is required either. The Reauthorization Amendments of 1990 (16 U.S.C. §§ 1455(d)(16), 1455b). It required coastal states to adopt enforceable mechanisms to control activities causing or contributing to nonpoint source pollution in the coastal zone. Safe Drinking Water Act As early as 1808 laws protected drinking water sources by regulating activities in watersheds or barring human entry into them. Cities sought pure drinking water sources, often on forested lands, where they built reservoirs to supply their citizens. In the 19th Century, protection of water purity at the source was accepted practice. The ideal water source was one “free from human habitation and is covered with forest.” As treatment technology improved, however, water suppliers shifted from this watershed protection approach to reliance on treatment, “purified water” rather than “pure water.” (Porter, 2006). In 1974, Congress enacted a new statute to protect drinking water in response to outbreaks of waterborne disease and increasing chemical contamination of public water sources and concerns about aesthetics and taste. The Safe Drinking Water Act (SDWA) authorizes the EPA to set maximum contaminant levels (MCLs) in public drinking water. In 1989, EPA adopted rules requiring surface water systems to filter their water, unless they can prove that filtration is unnecessary. Unfiltered systems must have an effective watershed control program. In 1996, recogniz- ing that treatment alone was not addressing all problems and often was extremely expensive, Congress added requirements that water suppliers prepare Source Water

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APPENDIX A 157 Assessments to tell consumers where their water comes from, what contaminants are in it, and whether the water poses a risk to health. The renewed emphasis on protecting drinking water at the watershed level reflects public concern that tradi- tional water treatment methods may not be adequate to assure public safety (Porter, 2006). Source Water Assessments should identify risks to all water resources used (or to be used) as drinking water supplies. Every state has now developed a Source Water Assessment Plan that sets priorities and lays out a process for completion of the assessments. EPA lists several forest practices as potential sources of contami- nation including harvesting, residue management, fertilization, pesticide application and road construction and maintenance (EPA, 2005). Other State and Federal Regulations Many additional federal and state laws and regulations can apply to any given forest management action. Each one is administered by a separate agency, or divi- sion within an agency, dedicated to protecting the specific public interest the statute addresses. For example, the Endangered Species Act (ESA) (16 U.S.C. §§ 1531- 1544) administered by the U.S. Fish and Wildlife Service (USFWS) and the Na- tional Marine Fisheries Service (NMFS) has become a significant factor in forest and water management on public and private lands because of the importance of aquatic and riparian habitat to many listed species. As a result, timber harvesting, livestock grazing, road construction and many other forest management activities have been curtailed or modified due to ESA requirements. Another example is the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which is administered by EPA or states with delegated authority regulates application of chemicals to for- ests for purposes such as insect and disease control and weed control during refor- estation to assure that the pesticides do not remain in the soil, air or water in quanti- ties that could harm water quality or fish and wildlife. There are also state and fed- eral laws that protect scenery along rivers and lakes, often restricting forest harvest- ing within buffer zones. For example, the federal Wild and Scenic Rivers Act, 16 USC 1271-1287, protects designated free-flowing rivers that have “outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural and other similar values.” ENVIRONMENTAL SERVICES MARKETS Existing institutions and legal systems have not kept pace with public recogni- tion of the benefits provided by forests. These values are now recognized as “envi- ronmental services.” (Pagiola et al., 2002). They include watershed protection, biodiversity conservation and carbon sequestration (Jenkins et al., 2004). Forests’ watershed protection services, such as water quality, flow regulation, water supply, flood prevention, salinization control and aquatic habitat, are among the most valu- able. For example, cities which depend upon unfiltered water estimate that every

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158 APPENDIX A $1 invested in watershed protection can save anywhere from $7.50 to nearly $200 in treatment and filtration costs (Reid, 1997). A recent international study identified 61 efforts to establish markets for the watershed services forests provide. The study illustrates how local communities, private companies and individual landholders are creating new market mechanisms to deliver and finance watershed protection. These local and regional efforts at- tempt to “ensure that land managers internalize the negative impacts they have on water quality and flow.” Failure of traditional governmental approaches has lead to local innovation (Landell-Mills and Porras, 2002). In all environmental service market situations there is a need to better quantify the results of various treatments and apply simulation models to relate treatment effects to downstream areas or “markets” in order to begin to use environmental service markets Environmental services markets have developed for many reasons, but funda- mentally they are a response to the failure of markets to value the services forests provide and the high cost of traditional governmental approaches to forest conserva- tion. Agencies lack funds to acquire forest lands in order to protect their watershed functions. Frustration has grown with the regulatory approaches discussed above because they are often inefficient, expensive and inequitable. Private landowners interested in managing their lands to provide clean water and stable water flows have no incentive to do so. The beneficiaries of the “services” provided forests are usually downstream and have no reason to pay for services that have traditionally been free. The market mechanisms for forest landowners to manage for water benefits can be categorized into three types: (1) self-organized private deals; (2) open trading systems; and (3) public payment systems (Powell et al., 2002). Private deals in- clude all direct transactions between beneficiaries of forest management and forest landowners who provide them. Purchase of conservation easements and develop- ment rights are the oldest and most pervasive private forest conservation transac- tion. Examples include water utilities buying land to protect drinking water sup- plies or land trusts buying property to protect wetlands or other watershed func- tions. Open trading markets are the second category of environmental services mar- kets, such as the markets that have developed for carbon offsets since adoption of the Kyoto Protocol. The first step in creating such markets is to quantify the amount of environmental service provided by a particular forest management prac- tice. What service is demanded and how can it be measured? What management practice creates the “product” or service? Once the service is “commodified,” in this way, public or private markets between buyers and sellers of the service can develop. The most prevalent markets for watershed services provided by forests are wetland mitigation banks and effluent trading systems. Water Quality Trading Water quality trading develops when one party, usually an industrial facility or

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APPENDIX A 159 wastewater treatment plant, faces relatively high pollutant reduction costs. If pol- lutant loads in the receiving water can be reduced for less by investing in forest restoration or other forest practices, it is worthwhile for the point source to compen- sate a forest landowner to achieve the less costly pollutant reduction by planting riparian buffers or reforesting lands. Several water quality trading markets are cur- rently operating, with others under development. Most of these markets are focused on either phosphorus or nitrogen-based trading, such as the Tar-Pamlico Basin in North Carolina and the Lower Boise River in Idaho. Trading is also underway for various forms of salmon habitat, salinity, temperature and transpiration (Landall- Mills and Porras, 2002). Mitigation Banks Mitigation banking means the “restoration, creation, enhancement and, in ex- ceptional circumstances, preservation of wetlands and/or other aquatic resources expressly for the purpose of providing compensatory mitigation in advance of au- thorized impacts to similar resources.” (Federal Register, 1995) The objective of a mitigation bank is to replace the functions of wetlands and other aquatic resources which are lost due to filling or other activities authorized under Section 404 or other permits. When the “bank” is established, the functions it provides are quantified as mitigation ``credits'' which are then available for use by the bank sponsor or by other parties to compensate for adverse impacts (i.e., ``debits''). Credits may only be used by permittees when impacts to aquatic resources are unavoidable and on- site compensation is either not practicable or use of a mitigation bank is environ- mentally preferable to on-site compensation. A developer seeking to fill wetlands, for example, could buy “credits” from a bank which had been established previously by restoring other wetlands. This often allows significant wetlands restoration to be funded by the cumulative credit pur- chases of many small developments, which can offer significant efficiency and eco- logical benefit. By 2000 over 70 commercial wetland mitigation banks were oper- ating in the United States. Costs of the credits range from $7500 per acre to as much as $100,000 per acre (NRC, 2001). The third category of markets involves direct public payments to landowners for environmental services. Examples of this type include the conservation reserve and wetland reserve programs under the Farm Bill. Under this approach, the gov- ernment pays landowners directly to set aside and manage their lands to reduce ero- sion and runoff. Many unresolved questions exist in the development of markets for the water- shed services provided by forests. Key questions remain about the exact nature and value of the service provided. For example, it is very difficult to quantify to the level of temperature reduction provided by a riparian buffer, or how much that re- duction is worth. When markets develop there must also be ways for buyers, sellers and regulators to measure and monitor the services provided.

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160 APPENDIX A CLOSING This appendix provides a brief summary of how water resources, including those that are outputs from forests, are governed in the United States. It traces the origins of the primary pieces of legislation that shape how water is managed and governed; it also elucidates how the governance of water and forests was and has remained fragmented, despite the physical interconnectedness of forests and water. This appendix presents a rationale for how forests may be included in some of these laws and regulations and offers ways to consider forests, and water as an elemental forest output, as potential components in environmental service markets. REFERENCES Council on Environmental Quality. 1997. Considering Cumulative Effects under the National Environmental Policy Act. Washington, D.C. Cubbage, F.W., and W.C. Siegel. 1985. The Law Regulating Private Forest Prac- tices. Journal of Forestry. __:538-545. Dahl, T. E., and C.E. Johnson, Status and Trends of Wetlands in the Coterminous United States, Mid-1970s to Mid-1980s (1991), U.S. Department of the Inte- rior, Fish and Wildlife Service. Ellefson, P.V., A.C. Cheng, and R.J. Moulton. 1995. Regulation of Private For- estry Practices by State Governments. Minnesota Agricultural Experiment Sta- tion (Bulletin 605-1995). Ellefson, P.V., M.A. Kilgore, and M.J. Phillips. 2001. Monitoring Compliance with BMPs: The Experience of State Forestry Agencies. Journal of Forestry. 11-17. Forest Environmental and Sustainability Issues in the Southern United States. Spe- cial Report No. 06-06. NCASE Southern Regional Meeting. Ashville, North Carolina. Getches, D.H. 1997. Water Law in a Nutshell. Third Edition. St. Paul, MN: West Publishing Company. Hawks, L.J., F.W. Cubbage, H.L. Haney, Jr., R.M. Shaffer, and D.H. Newman. 1995. Forest Water Quality Protection: A Comparison of Regulatory and Vol- untary Programs. 91:48-54 J. Forestry. Houck, O. 2002. The Clean Water Act TMDL Program: Law, Policy, and Imple- mentation (2d ed.). Environmental Law Institute. Washington, D.C. Ice, G.G., G.W. Stuart, J.B. Waide, L.C. Irland, and P.V. Ellefson. 1998. 25 Years of the Clean Water Act: How Clean Are Forest Practices? J. Forestry 9- 13. Irland, L.C., and J.F. Connors. 1994. State Nonpoint Source Programs Affecting Forestry: The 12 Northeastern States. Northern Journal of Applied Forestry. 11: 5-11. Jenkins, M., S.J. Scherr, and M. Inbar. 2004. Markets for Biodiversity Services:

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APPENDIX A 161 Potential Roles and Challenges. Environment. 46:32-42. Landell-Mills, N., and I.T. Porras. 2002. Silver Bullet or Fool’s Gold? A Global Review of Markets for Forest Environmental Services and Their Impact on the Poor. London: International Institute for Environment and Development. Lundmark, T. 1995. Methods of Forest Law-Making, Boston College Environ- mental Affairs Law Review. 22:783. National Council for Air and Stream Improvement. 2006. A Primer on the Top Ten. NRC (National Research Council). 2001. Compensating for Wetland Losses under the Clean Water Act. National Academy Press, Washington, D.C. Pagiola, S., J. Bishop, and N. Landell-Mills, eds. 2002. Selling Forest Environ- mental Services. Earthscan. London. Porter, K. 2006. Fixing Our Drinking Water: From Field and Forest to Faucet. Pace Environmental Law Review. 23: 389-422. Powell, I., A. White, and N. Landell-Mills. 2002. Developing Markets for the Ecosystem Services of Forests. Forest Trends. Washington, D.C. Reid, W.V. 2001. Capturing the value of ecosystem services to protect biodiver- sity. In Managing human-dominated ecosystems, eds. G. Chichilenisky, G.C. Daily, P. Ehrlich, G. Heal, J.S. Miller. St. Louis: Botanical Garden Press. Reisner, M. 1986. Cadillac Desert. New York: Viking. USEPA (U.S. Environmental Protection Agency). 2005. National Management Measures to Control Non-point Source Pollution from Forestry. (EPA-841-B- 05-001, May 2005). USEPA. 1995. Memorandum to the Field from the Corps and EPA Regulatory Program Chiefs, Subject: Application of Best Management Practices to Me- chanical Silvicultural Site Preparation Activities for the Establishment of Pine Plantations in the Southeast (Nov. 28, 1995). Available online at: http://www.epa.gov/owow/wetlands/silv.html. University of California Committee on a Scientific Basis for the Prediction of Cu- mulative Watershed Effects. 2001. A Scientific Basis for the Prediction of Cumulative Watershed Effects. University of California Wildland Resource Center Report. No. 46. Want, W.L. 2006. Law of Wetlands Regulation (Environmental Law Series). Thomson/West.

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