URBAN FORESTRY BRIEF Questions & Answers Recommended Changes to the Urban Forest Preservation Act of 2002

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1 URBAN FORESTRY BRIEF Questions & Answers Recommended Changes to the Urban Forest Preservation Act of 2002 Introductory Note: The Urban Forest Preservation Act (UFPA) of 2002 had two primary intents. The first was to recognize the environmental, social, cultural and aesthetic and other values of the District s trees and tree canopy. Secondly, it was designed to ensure that any tree 55 inches or greater in circumference (defined as Special Trees ), if removed, would be replaced by planting new trees. New or replacement trees would be planted by drawing from money in the Tree Fund, created by the UFPA, which would hold fees and/or fines collected from those removing Special Trees. UFPA was not designed to protect trees because anyone can remove any tree they wish so long as the requisite fees are paid and/or replacement trees planted. After almost 10 years since its passage it has become clear that the UFPA is not effectively replacing canopy lost from the removal Special Trees. Available records collected by Casey Trees over the past three years, as well as data made public in the D.C. Auditor s Report, show that replacement trees are not being planted as they should, Tree Fund money has been diverted to the General Fund, and; there is no information to show if trees planted are even alive. To deal with these shortcomings the following recommendations and associated questions are presented below: Recommendation 1: Reduce the size limit for trees covered by the UFPA from 55 inches to 29 inches in circumference. What are the reason(s) for doing this? Response: When first proposed, the UFPA focused on discouraging the removal of D.C. s large, healthy trees (or Special Trees) to preserve as much canopy as possible for the benefits it provides. When the UFPA was passed, however, data was not available to determine if that threshold accomplished that goal. From data collected since the UFPA was passed we now know that Special Trees comprise only half of the city s tree canopy; insufficient if D.C. is to reach its goal of increasing the city s canopy from the current 35% to 40%. Decreasing the limit to 29 inches in circumference will raise the amount of the city s canopy encompassed by the UFPA to 75%, which is a more realistic if the city is to achieve its 40% tree canopy goal. Secondly, while discouraging the removal of larger diameter trees to preserve canopy makes sense, it does not consider the trees of smaller sizes that will become the Special Trees of tomorrow. The graph on page 5 (Mortality Projections by Circumference Class) shows that trees in the 29 inch to 55 inch circumference classes have low mortality rates and are poised to become tomorrow s shade trees. Reducing the circumference limit for a Special Tree from 55

2 inches to 29 inches will help stabilize the city s current 35% canopy cover, and will make a significant positive difference in helping the city achieve the 40% cover it seeks. Finally, U.S. Environmental Protection Agency s MS 4 pollutant discharge permit for D.C. (NPDES Permit # ) issued on October 7, 2011 requires the city strengthen its tree preservation and other mechanisms to achieve its 40% tree canopy goal. Changing the threshold for trees encompassed by the UPFA from 55 inches to 29 inches in circumference will meet several permit requirements. Recommendation 2: Modify the mitigation alternatives for trees removed under the UFPA to an exclusive feebased system, and allow these fees to support proven tree planting programs and proven contractors so replacement trees will make up for those that are lost. Why should the city dictate how an individual, who has received a Special Tree Permit, should mitigate the removal of a Special Tree? Response: When a permitee is given the option of planting trees themselves as mitigation, a significant burden often falls to the city s arborists who walk the permitee through choosing the correct species, locating the planting sites, obtaining permission to plant from neighbors, etc. This is analogous to a builder relying on the city s review engineers to help design and build a building it should not be a responsibility for city staff. Urban Forestry Administration (UFA) staff agrees with this recommendation. In the D.C. Auditor s Report, UFA made the same recommendation in their Agency Comments starting on page 14, Point 10, which read in part: UFA also feels that having a planting component is not effective in the UFPA and it should be all payments in lieu of tree removal. This is more efficient for staff and the District.. UFA has requested the ability to change the UFPA for FY 12 with the Mayor. An alternative to eliminating this provision would be to charge more for those wishing to plant trees themselves because of the administrative burden it imposes on the city. For example, if the cost per circumference inch is $35 to remove the tree, the code could be changed to make the cost $40 per circumference inch should the individual receiving the permit wish to plant on their own (see Recommendation #3 regarding fees). Recommendation 3: Update the fee structure from $35 per circumference inch to $40 per circumference inch to account for tree planting cost increases from the time the UFPA was passed. Do you have any information to justify a change in fees? Page 2 of 5

3 Response: When the UFPA was passed in 2002, a 2 inch to 2.5 inch caliper (diameter) tree, planted on homeowner property was priced at approximately $250 to $300. Today we found that this cost is closer to $350 to $400 and beyond. Using the calculation in the UFPA, a 55 inch circumference Special Tree carries a fee to remove it of $35 per circumference inch which yields $1,925. At the time the UFPA passed, that translated into approximately $1,925/$250 or just under 8 replacement trees (7.7 total). In today s dollars, those same trees cost approximately $350 each to plant, reducing the replacement amount to $1,925/$350 or just over 5 trees (5.5). Increasing the fee to $40 per circumference inch would increase the fee to $2,200/$350 or just over 6 trees. This increase of $5 per circumference inch still provides fewer replacements in today s dollars but does make up for some of the loss. To bring it back on par in today s dollars, the figure in UFPA would need to be $49 per circumference inch. For these reasons we feel the proposed increase is extremely conservative but still helps to keep pace with the market. Recommendation 4: Specify within the UFPA where replacement trees must be planted on private lots when trees are removed from private lots; on public space when trees are removed from public space. Why does it matter where replacement trees are planted? Response: The UFA has used Tree Fund money to replace declining budgets to plant street trees but the Tree Fund was never intended to replace or supplant city budgets. Additionally, street trees, those planted between the curb and sidewalk, have higher mortality rates generally than trees planted in areas with greater soil volumes on private lots. Planting trees where they can grow and develop to their full potential to replace lost canopy is the main intent of the UFPA using Tree Fund dollars to plant street trees will not achieve this intent. Recommendation 5: Allow city inspectors the ability to deny permits for individuals seeking to remove a tree if the reason given is arbitrary. Establish guidelines for allowable and non allowable reasons for healthy Special Tree removal to help clarify procedures and assist city staff in their work. The UFPA never was intended to protect trees. That is, if someone wants to removea tree they can if they pay a fine. Isn t this an intrusion into someone s use of their land? Response: The UFPA established trees as a critical environmental, social, aesthetic and cultural component of the District. These values and the recommended protections provided to them are no different, for example, to those afforded special lands (tree and slope overlay, wetlands, etc.) or building characteristics (historic preservation districts) of which there are many throughout D.C. Trees add value not only to the value of the property where they exist, but also to the adjacent lots and ultimately, the neighborhood and city as a whole. Because of these benefits, and because this type of protection is not atypical of others, we feel trees should be Page 3 of 5

4 afforded these protections for the current and future benefit they provide to the city and its residents. Recommendation 6: Streamline the inspection procedure to reduce burdens on city staff by relying on third party inspectors as the city currently does for building review/inspection. Shouldn t the District s arborists inspect every tree to ensure that it is healthy or hazardous so it knows the permit it is granting is valid? Response: It is true that D.C. s arborists who inspect the tree for which a Special Tree Removal Permit is being sought must be the final arbiter, but the question of how much time they need to spend checking an inspection report comes into play assuming the person who initially inspected the tree is a qualified professional. To ensure quality control, D.C. s arborists could certify qualified professionals for this work to be certain that the third party reports they are receiving are valid, and do spot checks as opposed to 100% checks on the inspected trees. This would reduce their burden and allow them to be more responsive to Special Tree Removal Permit requests. Such a change would not need to be codified in the law, but rather in the regulations written to enforce it. Recommendation 7: Create a division within DDOE to monitor/enforce and administer the UFPA, along with the Tree Fund, to ensure the UFPA and Tree Fund are achieving their intended purposes. Switching agency functions can be time consuming and difficult. Why not leave these functions within the realm of UFA/DDOT? Response: There are several reasons for this, the most compelling of which is that UFA s mission has nothing to do with administering a law that is largely outside their jurisdiction on private land. UFA s mandate is to ensure a full and healthy population of street trees. As such, UFA s work takes place in the public, not the private space, and there is always a backlog of requests for street tree work. Special Tree Removal Permits are processed when there is time to process them and there is rarely additional time. UFA has stated that it wishes to shed this responsibility. DDOE on the other hand works on all lands and could fairly simply establish a unit to administer the law quite effectively without running into the conflicts inherent with UFA s primary tasks. Such a unit could be comprised of a group of three to four professional arborists that could also help DDOE with its other mandated tree related work such as formulating and executing their Urban Forest Master Plan, provisions within the city s MS 4 pollutant discharge permit, etc. With this staff DDOE could also assume a stronger presence in the public tree realm, helping to support Mayor Gray s sustainability efforts in years to come. Page 4 of 5

5 Mortality Projections by Circumference Class Page 5 of 5