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