NRC South Report - July 2011

July has been consumed with two issues: SoCal Roadless Collaborative Team and the USFS Water Quality Management Plan.

After two conference calls (July 28 and August 1) of about 4 hours each plus numerous other calls between, the tenor of the discussion has been changed.  Theatrics from a false report claiming OHV Intervenors had signed off on a “hit list” provided a slight disruption in on-going discussions.  The USFS is looking to complete the collaborative process by August 3, 2011.

For an overview, the Southern California National Forests Inventoried Roadless Area (IRA) Road and Trail Collaborative Group was convened to assist in collaboratively developing criteria for decommissioning roads and trails in IRAs and identifying project priorities based on those criteria in compliance with the Settlement Agreement approved for California Resources Agency, et al vs. United States Department of Agriculture, and Center for Biological Diversity, et al vs. United States Department of Agriculture.  The primary purpose of the collaborative group was to develop a mutually acceptable set of criteria and a list of priority road and trail projects for the Forest Service to implement as funding allows.  The proposal, or proposals, were developed through collaboration, recognizing the diverse interests of the settlement parties while trying to address all interests within the constraints of the Forest Service’s regulatory and administrative responsibilities.

The list of “priority road and trail projects” consists of all routes within designated Inventories Roadless Areas.  When I was unsuccessful at removing system routes from the list, I pushed to ensure that ALL routes (even non-motorized) were placed on the list.

During the ensuing meetings and conference calls, a list of criteria was developed.  I am still not completely satisfied with them. But, if the tentative agreement holds, systems routes are off the list for decommissioning.  As it stands, OHV Intervenors HAVE NOT agreed to anything concerning the stipulations in the settlement agreement.  Our emphasis from the beginning remains.  The “list” is nothing but a list and not a means to front-load any analysis process.  Any action undertaken on any route on the list must be preceded by site-specific/project level NEPA analysis.

The OHV Intervenors along with the California Resources Agency are pushing for an extension rather than completion by the imposed August 3 date.  USFS wants to complete this process on August 3.

The USFS Water Quality Management Plan has been my other focal point for the month.  Basically, the Water Board/USFS action is twofold.  1) Update the current USFS guidance dealing with water quality and 2)  Provide USFS with a singular consistent process throughout Region 5 for managing their water quality program.

The State Water Resources Control Board (State Water Board) has released a Mitigated Negative Declaration (MND), including the Initial Study, for a waste discharge regulatory program for National Forest System (NFS) lands around the State. The public review and comment period for the MND and Waiver is from June 10 until July 25, 2011.  That due date has been extended to August 24, 2011.

Under the California Environmental Quality Act, the State Water Board will be accepting public comment on three documents: Mitigated Negative Declaration, Waiver of Waste Discharge Requirements for Nonpoint Source Discharges Related to Certain Activities on National Forest System Lands in California, and USFS Water Quality Management Handbook.

The Mitigated Negative Declaration (MND) describes and evaluates the potential environmental impacts associated with the Conditional Waiver. The MND establishes that there is no substantial evidence, in light of the whole record before the State Water Board, that the project may have a significant effect on the environment, with incorporated mitigation measures that will avoid or mitigate potential significant impacts. All of the mitigation measures needed to avoid or minimize potentially significant impacts are set out in the MND and incorporated into the Conditional Waiver’s conditions.

Stated in cleared words, the Conditional Waiver notes that activities on Forest Service lands have no water quality impact provided they incorporate mitigation measures to avoid or minimize impacts in accordance with the Best Management Practices outlined in the USFS Water Quality Management Handbook.

By statute, USFS must manage NFS lands for multiple uses, including grazing, logging, mining, water supply, recreation, fire control, vegetation manipulation, and restoration. Activities associated with these uses may generate sediment, increase water temperature, and affect other water quality parameters. USFS has existing mandates, programs, funding, and resources for protecting and restoring water quality, riparian areas, wetlands, and watersheds. This Conditional Waiver is to address Non-Point Source discharges related to Timber Management, Road Management, Range Management, Recreation, Off-highway Vehicle (OHV) Recreation, Vegetation Manipulation, Watershed Restoration, and Fire Suppression and Recovery.

The Conditional Waiver is being proposed under the Clean Water Act (federal legislation) and the Porter-Cologne Act (California state legislation). Both pieces of legislation govern how the quality of water will be ensured within the State of California.

Basically, the Clean Water Act (CWA) applies to “waters of the United States” and prohibits illegal discharge from a “point source” that could affect water quality. The phrase “waters of the United States” includes surface water (not ground water) and traditionally navigable waters. The phrase “waters of the United States” does not include isolated wetlands or water bodies that lead nowhere.

As a contrast, the Porter-Cologne Act prohibits any discharge that could affect “waters of the state”. The phrase “waters of the state” includes ground water and isolated wetlands from point sources and non-point sources.

Point sources are direct sources such as discharge from a factory. Non-point sources are discharge from points where there is no defined source and are generally cumulative from multiple source. Typically, non-point sources are roads.

I am developing comments for CA4WDC to address the USFS Water Quality Management Plan.  I have attended every meeting (over a dozen) held by the USFS over the last 18 months dealing with this issue.  I have heard the environmental community drone on and on about the inadequacies of the BMPs contained in the USFS Draft Water Quality Management Handbook. 

The BMPs have been the guidance used by USFS for many years to conduct their normal business.  One exception is a new set of BMPs dealing with OHV Recreation which are newly created.  Overall, the BMPs have been in use for sometime with no adverse issues.

There is an interesting point with the OHV BMPs.  When the Forest Service references “trails”, in legal terms they are defining routes for vehicles less that 50 inches in width.  Vehicles greater than 50 inches in width are prohibited from using “trails” and restricted to using “roads”.  However, the USFS does have one arcane classification they have been reluctant to use.  They can identify a “trail” where it is a “road managed as a trail” which will then allow vehicles greater than 50 inches in width to use that trail.

The OHV BMPs apply to trails - for vehicles less than 50 inches in width as well as trails  for greater than 50 inches in width.  This is significant as it is the first time defined trail maintenance practices have been established for “roads managed as a trail”.

The focus of my comments will be on the administrative process the USFS will use to implement the Water Quality Management Plan -- adaptive management and monitoring.  These are the “rules” USFS will follow when dealing with on-the-ground projects.

Within the context of the Waiver, the projects will have BMPs that apply.  There will be monitoring criteria defined.  Should the monitoring determine the BMPs are not meeting expectations for water quality, the BMPs can be changed through “adaptive management”. 

In cases where the modified BMPs cannot ensure water quality, the issue then moves to the Water Board where the Water Board will determine whether the activity becomes a “point source” of pollution further action necessary or additional mitigation measures.

In short, I want to ensure that stakeholders (which include OHV) remain as a participant in future under rules that are reasonable.

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