September BMP Q&A

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

March BMP Q&A

By: Chris Duncan, BMP Forester (Ret.), Texas Forest Service

Q:  In last month’s article I was asked if there was any truth to the fact that there are sometimes mandatory BMPs which must be followed.

A:  The short answer to this question is that there are no mandatory BMPs you are required to follow, unless you are operating in jurisdictional wetlands. As mandated by Amendments to the Clean Water Act, forest roads in jurisdictional wetlands including “waters of the United States” must be constructed and maintained in accordance with the following Best Management Practices to retain Section 404 permit exemption status:

1. Permanent roads, temporary access roads, and skid trails in waters of the U.S. should be held to the minimum feasible number, width, and total length consistent with the purpose of specific silvicultural operations and local topographic and climatic conditions.
2. All roads, temporary or permanent, should be located sufficiently far from streams or other water bodies (except portions of such roads that must cross water bodies) to minimize discharge of dredged or fill material into waters of the U.S.
3. The road fill should be bridged, culverted or otherwise designed to prevent the restriction of expected flood flows.
4. The fill should be properly stabilized and maintained to prevent erosion during and following construction.
5. Discharges of dredged or fill material into waters of the U.S. to construct a road fill should be made in a manner that minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within waters of the U.S. (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself.
6. In designing, constructing, and maintaining roads, vegetative disturbance in the waters of the U.S. should be kept to a minimum.
7. The design, construction, and maintenance of the road crossing should not disrupt the migration or other movement of those species of aquatic life inhabiting the water body.
8. Borrow material should be taken from upland sources whenever feasible.
9. The discharge should not take, or jeopardize the continued existence of, a threatened or endangered species as defined under the Endangered Species Act, or adversely modify or destroy the critical habitat of such species.
10. Discharges into breeding and nesting areas for migratory waterfowl, spawning areas, and wetlands should be avoided if practical alternatives exist.
11. The discharge should not be located in the proximity of a public water supply intake.
12. The discharge should not occur in areas of concentrated shellfish population.
13. The discharge should not occur in a component of the National Wild and Scenic River System.
14. The discharge of material should consist of suitable material free from toxic pollutants in toxic amounts.
15. All temporary fills should be removed in their entirety and the area restored to its original elevation.

For more information on mandatory forest road BMPs and other BMPs visit the Texas Forest Service webpage at http://texasforestservice.tamu.edu/water, contact me at (903) 297-3910.

* This article was published in the March 2010 issue of the Texas Logger

March BMP Q&A

By: Jake Donellan, BMP Forester (Ret.), Texas Forest Service

Q:   Prior to all the rains, I was operating in what I call flatwoods. Now, that same area I was cutting in back in November is too wet and portions are flooded. This got me to wondering if there are any special BMPs that I needed to follow in the flatwoods once I am able to get back in there to finish the harvest.

A:   Sorry the rain put a pinch on your harvest operation but I am glad you moved out of there when the rains came. The bluebook defines flatwoods as: forested areas with slopes of 1% or less that usually contain mixed pine and hardwoods. If this is the kind of area you were working in then the short answer to your question is; no, there are no special BMPs that need to be followed in a flatwoods.

Flatwoods are not necessarily jurisdictional wetlands and therefore the 15 mandatory road BMPs do not always apply. It is very difficult however, to determine when the criteria of jurisdictional wetlands has been met; if there are any questions about whether a tract contains a jurisdictional wetland, consult a hydrologist or qualified personnel from the local Natural Resource Conservation Service office.

For this example we will assume that these flatwoods are not jurisdictional and are indeed just your average, everyday flatwoods. In this case, we could expect that during the wet season, the soil is often saturated and may even have water at or near the soil surface. There may be the presences of mounds and intermounded soils which would create for a rough ride in a skidder or shear. Common trees found in this type setting would be mixed pines, sweetgum, willow oak, water oak, cherrybark oak, and mixed white oaks. Despite the presence of water, these areas do not require a streamside management zone (SMZ). The primary concern for an area like this would be rutting which could cause damage and changes to the natural hydrology.

Also in your situation, you mentioned some areas that remain flooded on the tract. These areas could be backwater basins which are areas that hold water from backwater flooding when adjacent water bodies overflow. Backwater basins do not require the protection of a SMZ. Be aware though that these basins can be difficult to distinguish from intermittent streams (which do require and SMZ) and intermittent ponds. In cases where backwater basins have well-defined banks, trees should be left or selectively thinned on the bank and inside the basin. Trees should not be cut within the basin if there is a possibility of disturbing the backwater basin’s natural flow by rutting or jeopardizing soil stability.

For more information regarding flatwoods, backwater basins, and BMPs consult the bluebook. If you prefer, you can contact me

* This article was published in the March 2007 issue of the Texas Logger

December BMP Q&A

By: Jake Donellan, BMP Forester (Ret.), Texas Forest Service

Q: I am an industry forester and my company believes in and adheres to the Texas forestry BMP guidelines. I am conducting a harvest in a bottomland area and need some clarification on a specific situation we have encountered. Years ago when this stand was planted, the land was low and saturated for long periods of time so we installed drainage ditches to help get the stand established. These ditches have, over the years, apparently become the primary drains for this area of land. These ditches carry water most of the year and now they look more like streams than ditches. My question is, "Do we need to protect this ditch/stream with a streamside management zone (SMZ) or is it still just a ditch?"

A: Wow, this sounds like a complicated situation you have on your hands. The first thing I would recommend on a situation like this is that you find out if you are operating in a wetland. If you are not sure, you can always ask for assistance from the Natural Resource Conservation Service (NRCS formerly the Soil Conservation Service or SCS). Those folks are experts in the area of wetland delineation and should be able to tell you for sure if you are operating in a wetland. The reason this is important is because there are 15 mandatory road BMPs that you must follow when operating in a wetland. Those 15 mandatory BMPs can be found in the bluebook in the Forest Wetlands section on pages 93 & 94.

This is an interesting situation and it is difficult to make recommendations without visiting the site for myself however, this is an area that is covered in the bluebook. The Forest Wetlands section mentioned previously also covers drainage ditches (on page 92). The book says,

"Drainage ditches that were formerly natural streams and have dredged and/or straightened need the protection of an SMZ only if they meet the flowing water criteria for a perennial or intermittent stream."

You may or may not know whether these ditches were formerly natural streams but, based on the situation you described, it sounds like you have, at the very least, an intermittent stream. An intermittent stream is defined as a stream that flows for at least 4 months of a typical year. Given that you have what sounds like an intermittent stream then I would say that you should leave an SMZ. Since this ditch has apparently become the natural stream then it should definitely be protected by a SMZ.

You can get a copy of the Blue book at your local Texas Forest Service office or you can view it online at http://txforestservice.tamu.edu/water. If you have any questions regarding BMPs please contact me.

* This article was published in the December 2003 issue of the Texas Logger

July BMP Q&A

By: Jake Donellan, BMP Forester (Ret.), Texas Forest Service

Q:   I am harvesting timber on a landowner’s tract and I came across an area that looked to me like some sort of wetland area. The landowner said he didn’t think that it was a wetland and not to worry about it. I know that timber harvesting is allowed in wetlands but how exactly can you tell what one looks like.

A:   You are correct, timber harvesting is allowed in wetlands under Section 404 of the Clean Water Act Amendments of 1977 as long as it 1) qualifies as “normal silviculture,” 2) is part of “established” silvicultural operation, 3) is not part of an activity whose purpose is to convert a water of the United States into a use to which it was not previously subject, 4) follows the fifteen Mandatory Road BMPs, and 5) contains no toxic pollutant listed under Section 307 of the Clean Water Act in discharge of dredge or fill materials into waters of the United States.

To address your question, let me first quote the definition of a wetland. The U.S. Army Corps of Engineers (U.S. ACE) and the Environmental Protection Agency jointly define wetlands as:

“Those areas that are inundated or saturated by surface or groundwater at a frequency or duration sufficient to support and, under normal circumstances, do support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”

While this definition is fairly lengthy and in depth, the last sentence provides us with the best idea of what a wetland looks like; “swamps, marshes, bogs, and other similar areas.”

There are three criteria that the U.S. Army Corps of Engineers look at when delineating wetlands: (1) hydrophytic vegetation (plants that have the ability to grow, compete, reproduce and or persist in anaerobic soil conditions), (2) hydric soils (soils that are saturated, flooded, or ponded long enough during the growing season for anaerobic soil conditions to develop, and (3) wetland hydrology (inundation by water sufficient to support hydrophytic vegetation and develop hydric soils). All three criteria must be present under normal circumstances for an area to be identified as a jurisdictional wetland.

There is an entire section, starting on page 82, in the Bluebook that is dedicated to helping you understand what a wetland is and how to minimize the impacts in these sensitive areas. This section also includes a list of the 15 Mandatory Road BMPs on pages 93 & 94. If you believe you are or will be operating in a wetland or wetland-like area, then you should definitely review the Forest Wetlands section of the Bluebook before beginning operations.

Landowners or loggers who have more questions or who are still unsure about wetlands should contact the Texas Forest Service or the U.S. Army Corps of Engineers. There are two U.S. ACE districts that cover east Texas, the Forth Worth District which you can reach at (817) 886-1326 or the Galveston District (409) 766-3004.

You can get a copy of the Bluebook at your local Texas Forest Service office or you can view it online at http://txforestservice.tamu.edu/water. If you have any questions regarding BMPs please contact me.

* This article was published in the July 2003 issue of the Texas Logger

June BMP Q&A

By: Jake Donellan, BMP Forester (Ret.), Texas Forest Service
 

Q: I heard that the Texas Forest Service inspects sites for BMP compliance. How does a site get selected and what is done with the information after it is collected? I do a good job as often as I can, although I admit I may have let one slide.

A: That is an excellent question that I get asked quite often. The Texas Forest Service (TFS) regularly inspects, with landowner permission, recently harvested tracts for voluntary compliance with BMPs. The TFS looks at about 150 tracts every two years. These sites are selected in a number of different ways. A common way a site can be selected is during “Bug Flights.” These flights are flown over East Texas to locate bug infestations. TFS employees identify sites that they see from the air that look like they have been recently harvested. The 150 sites that are selected are distributed proportionally into 3 landowner categories: Non-Industrial Private Forest (NIPF) landowners, Industry, and Government. Relatively more NIPF site inspections are conducted in northeast Texas where there is a larger percentage of NIPF landowners. Similarly, more industry sites are inspected in southeast Texas where they are more prevalent. This provides a sound foundation for the data presented in each of the monitoring reports.

After being selected and receiving landowner permission, then the site is inspected. I fill out a report based on how well BMPs were used and implemented over the entire site. I send a copy of my report to the landowner, the logger (if known), the forester (if applicable), and I keep a copy myself. The purpose of the inspection is purely educational. I may make recommendations about what might have been done differently. Once all 150 sites have been inspected, the data from the inspections is used to compile a monitoring report. This report, which includes a composite summary of the findings but no individual names or other specific tract information, is then sent to the EPA and a wide range of other interested folks. We have been doing a great job so far and hope to continue using BMPs on a voluntary basis.

Remember that the practices are currently voluntary. You may have heard recently about the EPA proposed change of silvicultural practices from a non-point source of pollution to a point source of pollution. If that occurs, then the EPA could then impose regulations that could incur penalties for poor implementation of BMPs. According to an article in the May 2000 issue of The Forestry Source, a news journal produced by the Society of American Foresters, the EPA is expected to release it proposed final rule by June 30th on its proposal to categorize silvicultural activities as point sources of pollution. A period of public comment, which is typically 60 to 90 days, would follow, with a final rule expected by the end of the summer. If you have any questions or comments, please contact me.

* This article was published in the June 2000 issue of the Texas Logger