ODF clarifies how new forest rules should be implemented
December 2nd, 2008 by Jim JustEarlier this year, in one of Ron Eber’s final accomplishments before he retired and as a result of Goal One Coalition’s work on forest issues over the last few years, the Department of Land Conservation and Development (LCDC) amended its forestry rules, clarifying how the forest inventory was to be conducted (OAR 660-006-0010) and how forest productivity was to be determined (OAR 660-006-0005(2) and (3)).
As a result of the rule changes, it has become more difficult for a “hired gun” forestry consultant to conjure up the evidence needed to remove land from the protection of Goal 4 and reclassify it for development as “nonresource” land. Productivity must be determined and expressed in terms of cubic feet per acre per year. Acceptable data sources are specified. If published data is not available, methodology used by a forestry consultant must be reviewed and approved by ODF.
The Oregon Department of Forestry (ODF) has now issued a letter further clarifying their understanding of how the new rules are to be implemented. The letter was developed in consultation with the Department of Land Conservation and Development (DLCD) and ODF’s designated attorney at the Department of Justice.
The ODF letter explains that the rule establishes a hierarchy of data sources. In the first tier are the sources specified in the rule. The second tier includes other data sources determined by the State Forester to be of comparable quality. If no acceptable published data is available, “alternative methods” may be used to determine site productivity using direct tree measurements and calculations and appropriate site tables. Lastly, if site-specific productivity cannot be determined due to circumstances such as unavailability of suitable trees, sit-specific soil survey methodology may be employed.
The ODF letter reiterates that if data other than specified published data is used, ODF approval of the methodology employed must be obtained on a case-by-case basis. The letter also notes that productivity data assumes fully stocked stands and states that if a landowner claims that the property cannot be fully stocked for some reason, ODF approval is required before the stockable area” may be reduced.
Goal 4 protects “lands which are suitable for commercial forest uses.” However, neither Goal 4 nor its implementing administrative rule establish any productivity threshold. The ODF letter concludes by reaffirming that ODF considers lands capable of producing 20 cf/ac/yr to be commercial forest land. While not a legal standard, the ODF statement should serve as persuasive evidence that land capable of producing 20 cf/ac/yr of commercial timber is forest land protected by Goal 4.
While we at Goal One Institute are not happy with everything in the letter – particularly the bit that in essence requires that the potential capability for growing ponderosa pine in the Willamette Valley be ignored – on the whole, ODF’s letter clarifies several issues which have been the subject of much litigation. What impact the letter will have on LUBA’s and the courts’ future disposition of those issues remains to be seen.
The ODF letter is available here.