Jim Colla, Ted Lorensen and Ann Forest Burns

How and why western states regulate forest practices on non-federal forestlands has changed over the years. Oregon and Washington have moved from a common law system to reforestation requirements enforced by cutting permits, to detailed statewide regulatory systems aimed at preventing pollution and protecting public resources.

Oregon adopted the nation's first comprehensive forest practices act (FPA) in 1971, and Idaho and Washington soon followed suit, enacting theirs in 1974. The FPA programs in the Pacific Northwest states were a direct response to enactment of the federal Clean Water Act. Montana has a regulatory stream management zone with a voluntary "best management practice" program that applies to harvesting and road practices.

The West's first forest practices acts, passed in the early to mid-1940s, were a response to concerns over future timber supply. Once private land was harvested, many private owners would stop paying property taxes. Eventually, the government, usually the county, would foreclose on the tax lien. Because there were few investors willing to buy at tax sales, local governments ended up owning a lot of denuded or poorly stocked forest land.

One of the public policy responses to this problem was the passage of state reforestation acts, such as Washington's 1945 act, which required private owners to get a cutting permit from the state prior to harvest.

Although the administration of the reforestation acts changed as on-the-ground practices changed, the scope of these laws was insufficient to meet public policy shifts toward more stringent pollution control laws.

In the early 1970s, the federal Clean Air Act and the federal Clean Water Act were passed. Each of these acts allows regulation of so-called non-point sources of pollution-pollution that is diffuse across a landscape (rather than coming from a point such as a pipe or smokestack.) At the local level, many governments were interested in regulating forestry in the land use context because of aesthetic concerns or to prevent rapid growth by controlling conversions.

In the West, the response to these threats of intervention by both the federal government and many and diverse local authorities with no uniform set of requirements, was the support of state-level forest practices acts. For instance, the Washington Forest Practices Act specifically refers to the federal Clean Water Act.

Commonalties

Forest practices acts vary from state to state. Some, like California's, emphasize process, relying on such devices as harvest plan certification by a state-licensed forester and extensive paper review. Others, like Oregon's, rely more on on-the-ground improvement of practices.

In general, all the acts address water protection, harvesting, pesticide use, road construction and maintenance, reforestation, and fish and wildlife protection through rules or best management practices (BMPs). They all clearly articulate the need to balance economic growth with environmental stewardship in their objectives, and these objectives are met by applying sound forest management principles. All states set up a mechanism through an appointed board or committee to change the administrative rules needed to implement the acts. Fines and other enforcement mechanisms are included in all the acts.

Changes over time

The Idaho FPA is the closest to its origin. One can still find significant sections of the code and administrative rules essentially unchanged from the original of 1974. Oregon's FPA has gone through more changes, but retains an assistance-based approach as opposed to Washington's process-based approach. Washington's FPA has evolved far beyond the original drafters' intent, and its rules are unrecognizable compared to the original standard.

Changes in forest practices programs go beyond written code and administrative rules, and include the operational philosophy of the respective regulatory agencies. Generally, the more paperwork, and thus process required, the less flexibility the state regulatory agency has to administer the program and the more constrained the landowner becomes.

Apples and oranges

As the state programs evolve, it becomes increasingly tempting to compare them, especially considering the common origins and similar landscapes. It is both difficult and in some ways unfair to compare forest practice acts. Depending on ones' perspective, any given state program could be too lax or too restrictive. Despite many common elements, differences have arisen in each state for many reasons, including physical and biological factors of the landscape, logging history and experience, public knowledge of forest management issues, economic impact of the timber industry and socio-political desires of the public in each state. Therefore, it is neither possible to have a one-size-fits-all approach to a forest practice such as streamside management, nor would it be prudent to believe that what works well (or is a miserable failure) in one jurisdiction will work as well (or fail) in another.

Instead of comparing forest practices, it might be better to compare regulations across all land uses. In nearly every situation, forest practices rules set a high standard compared to other land uses. Furthermore, each set of forest practices regulations is best considered as a whole and within the context under which it is applied.

For example, Oregon has a forest practices act, a statewide comprehensive land use program, a scenic rivers program, cultural resources site protection and other programs that work in combination to create the standards under which forest landowners and operators must operate. Looking at standards also requires some technical analysis. For example, Oregon requires a 50-year storm design standard for stream crossings. This standard does not allow any ponding deeper than the top of a culvert, and is thus similar to 100-year design standards of other parties.

The Idaho and Oregon FPAs use descriptive standards and set broad goals for water, soil, air, and fish and wildlife protection. With the goals established by law, attainment standards are described in administrative rules. It is left to the operator or landowner, with assistance from the state as needed, to determine site-specific on-the-ground prescriptions to be followed. Preplanning an operation is essential to ensure landowner objectives and the intent of the FPA is met. Agency foresters spend time in the field to identify and develop prescriptions that help landowners meet their goals and mitigate for any anticipated adverse impacts. This is done cooperatively with the landowner and operator, the vast majority of whom have had significant training. The end result is a cooperatively developed and agreed upon approach to resource protection with a very high rate of compliance with FPA requirements. In contrast, the Washington approach relies more heavily on analysis and planning to better quantify effects and develop prescriptive BMPs to accomplish the same end.

The prospect of additional, unsubstantiated regulation is a legitimate concern of forest landowners that is greatly underestimated by regulators. As forest practices acts evolve, future environmental challenges concerning forestry practices will require different approaches than those used in the past where science and emotional and political concerns have been pitted against each other. Meaningful progress that all interests can live with will require the fusion of environmental and economic thinking and a willingness on the part of the industry, government and environmental leaders to work together to integrate goals.

This article was compiled from written material provided by Jim Colla, Idaho Forest Practices Act program director, Ted Lorensen, Oregon Forest Practices program director, and Ann Forest Burns, an attorney in private practice in Seattle, Wash.

This article appeared in the Northwest Woodlands Magazine, Spring 2001- Published quarterly by the World Forestry Center as a benefit of membership in the Oregon Small Woodlands Association, Washington Farm Forestry Association, Idaho Forest Owners Association and Montana Forest Owners Association.