Re: THP # HUM Weburg THP Plan submitter: Donald and Myrna Weburg

Transcription

1 Ms. Leslie Markham Deputy Chief Forest Practice Forest Practice Unit California Department of Forestry and Fire Protection 135 Ridgeway Avenue Santa Rosa, CA Forestry Program P.O. Box 1067 Arcata, CA August 3, 2004 Re: THP # HUM Weburg THP Plan submitter: Donald and Myrna Weburg Ms. Markham, As a representative of the California Native Plant Society (CNPS), I am writing this letter to draw your attention to Timber Harvest Plan # HUM. CNPS is a nonprofit organization of nearly 10,000 amateurs and professionals dedicated to the preservation of California s diverse native flora. CNPS conducts a variety of conservation efforts focused on long-term protection and preservation of native flora in its natural habitat. The California Native Plant Society is concerned that rare plant issues are often not adequately addressed in Timber Harvest Plans (THPs). The Forest Practices Rules state that the purpose of the CFPR is to implement the provisions of the Z Berg Nejedly Forest Practice Act of 1973 in a manner which is consistent with other laws, including the California Environmental Quality Act (CEQA). If plans continue to be approved without full compliance with these laws, as in the case of this plan, the THP approval process should no longer be considered CEQA-equivalent. In the case of this THP, the following issues should be addressed prior to approval. 1. Inadequate Botanical Scoping According to the Department of Fish & Game s California Natural Diversity Database, the following species are known to occur in the vicinity and/or habitat types likely to be present within the plan area and should have been included in the botanical scoping list:

2 Bensoniella oregana Carex arcta Carex leptalea Carex praticola Carex viridula var. viridula Gilia capitata ssp. pacifica Lycopodium clavatum Mitella caulescens Monotropa uniflora Montia howellii Sanguisorba officinalis Sidalcea malachroides Sidalcea malviflora ssp. patula Sidalcea oregana ssp. eximia Thermopsis robusta Usnea longissima bensoniella northern clustered sedge flaccis sedge meadow sedge green sedge Pacific gilia running-pine leafy-stemmed mitrewort Indian pipe Howell s montia great burnet maple-leaved checkerbloom Siskiyou checkerbloom coast checkerbloom robust false-lupine long-beard lichen This list includes non-listed plants that qualify for consideration under 14 Cal. Code Reg The species in bold font were omitted from the scoping list even though they have the potential to occur in the plan area (CNDDB Nov. 2002; CNPS 2001). Many of these species are difficult to identify, and can easily be confused with more common species. This assessment clearly fails to meet botanical survey requirements as described by standard accepted survey protocols, including the California Department of Fish & Game s Guidelines for Assessing the Effects of Proposed Projects on Rare, Threatened, and Endangered Plants and Natural Communities (May 2000) and the U.S. Fish and Wildlife Service s Guidelines for Conducting and Reporting Botanical Inventories for Federally Listed, Proposed and Candidate Plants (1996). 2. Inadequate Botanical Surveys No botanical surveys have been conducted within the THP area, and the plan should be returned and resubmitted after botanical surveys are properly conducted and included within the plan. Without seasonally-appropriate floristic surveys conducted by a qualified botanist, it cannot be determined whether there will be significant negative impacts to listed or non-listed sensitive species that are protected under CEQA Botanical surveys should be seasonally-appropriate and floristic in nature. Surveys should be conducted during the blooming seasons of each species that has the potential to be present in the plan area. The plan should be resubmitted after botanical surveys are complete. Botanical surveys should include an inventory of all species present within the plan area, as described in the DFG Guidelines for Assessing the Effects of Proposed Projects on Rare, Threatened, and Endangered Plants and Natural Communities (CDFG 2000). 2

3 Botanical surveys should be conducted by a qualified botanist. Floristic surveys should be conducted by botanists with knowledge of the local flora, taxonomy and identification of all local tax, including grasses and graminoids, and experience with timber harvest impacts and feasible mitigations to protect sensitive plant species from those impacts. An inventory of all plant species present in the plan area should be included in botanical survey results upon plan submittal. 3. The THP was denied by CDF in 2002 in essentially the same form. This THP was previously submitted as THP HUM, and was denied by CDF for inadequate botanical scoping. The botanical scoping included in THP is essentially the same as that of the plan that was denied for inadequate botanical scoping. THP should be returned and recirculated after adequate botanical scoping and surveys are completed, or the plan should be denied again. An overview of the legal basis for CDF s denial of THP follows. In a letter dated January 8, 2002, Bill Snyder, Deputy Chief, CDF, wrote: The final decision to deny this plan was based on the information contained in the final DFG report. The report contains substantial evidence presented by DFG that potential habitat exists for 9 additional plant species which was not discussed in the original scoping for this THP... Because these species could be impacted by potential operations, DFG recommended that these plants be listed in the assessment and that potential impacts be addressed. Botanical surveys were also recommended for the plan area prior to the beginning of timber operations... The Department concurs with DFG that these plant species meet the criteria for listing as rare, threatened or endangered under 14 CCR Section in the CEQA guidelines. As such, given the information in the DFG PHI report the Department concluded that a fair argument had been raised which was supported by substantial evidence by DFG that the THP could have a significant affect on the environment. The RPF declined to provide CDF with sufficient information with which to evaluate these issues and did not grant an extension of the Director's Decision period as requested by CDF. The CEQA Guidelines provide that a certified program under PRC Section remains subject to other provisions under CEQA such as the policy on avoiding significant adverse effects on the environment, where feasible. The functional equivalency program exempts the Timber Harvesting Plan process from the requirement to prepare an Environmental Impact Report (EIR). Additional exemptions should not be implied or presumed. While PRC Section allows for preparation of a THP instead of an EIR under a functionally equivalent process, it does not exempt plan submitters from adhering to the broad policy goals of CEQA or from CEQA's direction to fulfill the act's goal of long-term preservation of a high quality environment and to avoid or substantially lessen significant effects on the environment, where feasible. CEQA's fundamental environmental policy direction needs to be considered in 3

4 light of more specific environmental law and harmonized. This concept is viewed to be just as applicable to the Forest Practice Act as it is to provisions of the Fish and Game Code. One of the court decisions that shapes our understanding of the law is Sierra Club v. State Board of Forestry (1994) 7 Cal.4th The State Supreme Court noted that both the Forest Practice Act and the portions of CEQA from which the regulation of timber harvesting were not specifically exempted, apply to the process of reviewing and approving timber harvesting plans. The Forest Practice Rules in section (c)(1 ) require the Department to disapprove plans that do not incorporate "silvicultural systems, operating methods and procedures" that would substantially lessen significant adverse impacts on the environment. To determine whether a THP incorporates measures to lessen the impacts, the Department must be able to secure the information necessary to make that determination. Further, section in CEQA gives the Department authority to request information needed to identify significant effects. Without an adequate scoping procedure, identification of suitable habitat for 15380( d) species which may be in the plan, confirmation of species presence or absence, and appropriate mitigation measures, the Director did not have sufficient information in the plan to conclude that the plan would substantially lessen the adverse impacts on the environment. As such, the plan could not be found to be in conformance with the 14 CCR 896(a) which states "The purpose of the Forest Practice Rules is to implement the...provisions of the Z'Berg-Nejedley Forest Practice Act of 1973 in a manner consistent with other laws, including but not limited to...the California Environmentalt Quality Act (CEQA )of " (Snyder, January 8, 2002). On Januray 10, 2002, Daniel Sendek, Executive Officer of the California Board of Forestry and Fire Protection wrote to Mr. Weburg, stating that On January 9, 2002, the Board of Forestry and Fire Protection held a public hearing on your appeal of the Director's return, unapproved, of Timber Harvesting Plan (THP) HUM. The hearing was held pursuant to Public Resources Code (PRC) (c). At the conclusion of the hearing, the Board, on a vote of 4-1, determined that the plan was not in conformance with the rules of the Board and the provisions of the Forest Practice Act of The Board upheld the Director's decision regarding THP HUM for the reasons identified by the Director. Pursuant to PRC (d) and Title 14, California Code of Regulations , the Board therefore makes its order disapproving THP HUM. Disapproval of the plan is without prejudice to the applicant submitting a plan at a later time complying with the rules and regulations of the Board and provisions of the Forest Practice Act. The judge's decision in Weburg v. CDF indicates that the DFG has the right to require plant surveys for all plants covered by 14 Cal. Code Reg The judge s decision affirms 4

5 that CDF is authorized by CEQA to request any information necessary to determine whether the THP may have a significant effect on the environment (14 Cal. Code Reg ). According to 14 Cal. Code Reg (a), a lead agency shall find that a project may have a significant effect on the environment where the project has the potential to substantially reduce the number or restrict the range of an endangered, rare or threatened species. Failure to conduct an appropriate plant survey where listed or non-listed plants are likely to occur violates the spirit and intent of CEQA. The California Forest Practice Rules (CFPR) states that [i]nformation on the presence and protection of known habitat or individuals of any listed species and information on the presence and protection of non-listed species which may be significantly impacted by the timber operation must be included in the THP (Sec w). According to Sec of the CFPR, [t]he Director shall disapprove a plan as not conforming to the rules of the Board if [t]here is evidence that the information contained in the plan is incorrect, incomplete or misleading in a material way, or is insufficient to evaluate significant environmental effects (emphasis added). In addition, the CDF Director s mass mailing of July 2, 1999 clearly states that these laws must be complied with, and that the RPF should also remember that an assessment area which extends well beyond the plan boundaries may be needed for certain species. The lack of adequate surveys fails to meet requirements under 14 Cal. Code Reg If THPs continue to be approved without complete botanical surveys, the THP process will no longer be in compliance with CEQA-equivalency requirements as stated in 14 Cal. Code Reg According to both CEQA and the Forest Practice Rules, no THP shall be approved which fails to adopt feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects (14 Cal. Code Reg and 896(a)). Without accurate information on the presence of sensitive species, this requirement of state law is clearly unmet. THP should be recirculated with complete and accurate information on botanical resources in the project area before it is approved. Seasonally appropriate floristic surveys conducted by qualified botanists should be included at the time of submittal for all THPs where sensitive species are likely to be impacted by timber harvest operations, including road building, road maintenance, treefalling, tractor and cable yarding, heavy equipment use, broadcast, and forestry herbicide use. The California Forest Practice Rules state that its purpose is to implement the provisions of the Z Berg Nejedly Forest Practice Act of 1973 in a manner which is consistent with other laws, including CEQA. The Forest Practice Act states that: it is the policy of this state to encourage prudent and responsible forest resource management calculated to serve the public's need for timber and other forest products, while giving consideration to the public's need for watershed protection, fisheries and 5

6 wildlife, and recreational opportunities alike in this and future generations (Public Res. Code 4512 (c)). If plans continue to be approved without full compliance with these laws, as in the case of this plan, the THP approval process should no longer be considered CEQA-equivalent. CNPS believes that it is not possible for CDF or DFG to determine the nature and significance of potential direct and cumulative impacts to sensitive species in the absence of appropriate botanical scoping and surveys. CNPS respectfully requests that CDF and DFG reevaluate THP with respect to potential significant direct and cumulative impacts to sensitive plant species. The CNPS Forestry Program would like written responses to all of our concerns with regard to THP , as required by Pub. Res. Code (d)(2)(d). Please include this letter in the record for THP # HUM. Sincerely, Jennifer Kalt Forestry Program California Native Plant Society Cc: Review Team Chair, CDF, Fortuna Mark Stopher, California Department of Fish and Game Tony LaBanca, California Department of Fish and Game References: California Department of Fish and Game, Guidelines for Assessing the Effects of Proposed Projects on Rare, Threatened, and Endangered Plants and Natural Communities. May, California Department of Fish and Game, Natural Diversity Database. Nov Special Vascular Plants, Bryophytes, and Lichens. Biannual publication, Mimeo. 150 pp. CNPS Inventory of Rare and Endangered Plants of California (sixth edition). Rare Plant Scientific Advisory Committee, David P. Tibor, Convening Editor. California Native Plant Society. Sacramento, CA. Donald H. Weburg v. State Board of Forestry, 12/6/02, Superior Court of California, County of Sacramento. Sendek, Daniel. Executive Officer of the California Board of Forestry and Fire Protection. Jnauary 10, 2002 letter to Donald Weburg, plan submitter for THP HUM. 6

7 Snyder, Bill. Deputy Chief, California Department of Forestry and Fire Protection. January 8, 2002 letter to Stan Dixon, Chairman, State Board of Forestry. Tuttle, A. July 2, CDF Guidelines for Species Surveys, Avoidance of Significant Impacts and Identified Mitigations. California Dept. of Forestry, Sacramento, CA. United States Fish and Wildlife Service Guidelines for Conducting and Reporting Botanical Inventories for Federally Listed, Proposed and Candidate Plants. Sacramento, CA. 7