By: Chuck Coup, BMP Forester (Ret.), Texas Forest Service
Q: I
have a question about a landowner that is clear-cutting a wetland / forest
swamp area. It is a patchy clearcut, and they are removing most of the
merchantable trees (the cypress and gum), leaving most of the tallow, gnarly
oaks, and willow. There are no issues with rutting because of the dry
conditions, and all best management practices (BMPs), to the best of my
knowledge, are being followed. Of course, it appears that the area is being over-harvested,
because I know the BMP handbook says you’re supposed to treat forest swamp
areas as if they were SMZs. The tricky part is that this is a land conversion
harvest. The landowner has managed the property for timber for many years, but
is conducting this harvest because he wants to turn the area into pastureland.
In fact, cows are already on the site. However, as I understand it, because
this is a land conversion harvest that is taking the property out of ongoing
forestry, BMPs would not apply. Is this correct?
A: An
excellent question! Let me start by saying great work consulting the BMP
handbook to find out about the guidelines for forest swamps. You are exactly right
that the green section of the handbook recommends treating these areas as if they
were SMZs; so clear-cutting would not be a recommended forest management
strategy. I am also glad to hear that the dry conditions allowed you to operate
in the wetland without causing ruts, because it is extremely important that the
natural flow patterns of these areas be maintained in order to protect the
wetland’s many beneficial functions.
Now, do BMPs apply to this wetland conversion harvest? Well
the answer is a little more complicated than a simple yes or no.
First, let’s start with some background information. As most
of you know, our forestry BMPs originate from the federal Clean Water Act (CWA)
which is directed at protecting our water resources. Section 404 of the CWA
specifically relates to wetlands and makes it unlawful to “discharge dredged or
fill material” (which includes rock, sand, soil, clay, and wood chips) into
“waters of the United States” (which includes wetlands such as forest swamps)
without a permit from the Army Corps of Engineers (ACOE); commonly referred to
as a 404 permit. This basically just means you can’t legally impact a wetland
without first obtaining a permit from the ACOE. Fortunately, forestry is
generally recognized as a land use that is compatible with wetland protection,
and as a result, the CWA specifically exempts forestry operations from requiring
404 permitting.
However, that permit exemption comes with a few important
conditions.
The first requires that the forestry operation qualify as
“normal silviculture,” which includes such activities as soil bedding, site
preparation, and harvesting. The second requires that the “fifteen mandatory
road BMPs” are followed (check your BMP handbook if you are not familiar with
these). The third requires that the operation must be conducted as part of an
“established” silviculture operation; which means that the area has previously
been managed for timber and the operation is just a continuation of that
management. The fourth requires that no toxic pollutants be discharged into the
waterway. And finally, the fifth requirement says that the purpose of the
operation cannot be to convert any part of a wetland (such as a forest swamp)
to a use that it was not previously subject to (such as pastureland). All five of
these conditions must be met in order to be exempted from the 404 permit
requirement.
Having gone through all of that, the answer to your question
is “No.” While still a good idea, BMPs do not apply to your wetland conversion
harvest, and therefore you are not required to harvest the area as if it were
an SMZ. However, this is not because wetland conversion operations are somehow exempt
from BMPs. Rather, it is because wetland conversion operations do not fall within
the forestry exemption, and therefore, are required by federal law to have a
section 404 permit from the ACOE.
For more information on wetlands and other BMPs visit the
Texas Forest Service webpage at http://txforestservice.tamu.edu/water or
contact me by phone at (936) 639-8180.
* This article was published in the September 2011 issue of the Texas Logger
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