July 3, 2014
BMP Directive Comments
USDA Forest Service
Attn: Michael Eberle – WFWARP
201 14th Street, SW
Washington, D.C. 20250
Dear Mr. Eberle:
The Resource Development Council for Alaska, Inc., (RDC) is writing to comment on Proposed Directives for National Best Management Practices (BMPs) for Water Quality Protection on National Forests Lands.
RDC is a statewide non-profit business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, fisheries and tourism industries. RDC’s membership also includes Alaska Native corporations, local communities, organized labor and industry support firms. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.
RDC understands the purpose of the national BMP program is to provide a standard set of core BMPs, a consistent means to track and document the use and effectiveness of them, and to efficiently administer the agency’s program. If used correctly, the proposed directives can be beneficial, but they also could result in abuse and added litigation. We support the objective of national BMPs to the extent that they reduce monitoring costs and duplicative monitoring burdens associated with many national forests having to continue to monitor the effectiveness of already proven practices. The national BMPs should serve as a useful tool to defend against allegations that BMP monitoring is insufficient and there is not enough information to support proven practices to protect water quality. If a purpose of the directives is to reduce duplication of costs that purpose should be included in the directive.
RDC supports the intent that the national core BMPs will be deliberately general and non-prescriptive. In general, the BMPs and monitoring protocols should be flexible so they can be easily and quickly modified as needed. We would be strongly opposed to the national BMPs and associated directives if they are to be used as the foundation for prescriptive practices and additional litigation. While most of the BMPs were written in general terms, there is a danger that the national BMP approach will be used as a mechanism to adopt inflexible restrictions on the use and management of national forests that do not recognize the wide variety of conditions found across the 150 million acre National Forest System and the corresponding diversity of users throughout the nation. If the directives are to be used to create inflexible one-size-fits-all prescriptions, RDC would strongly oppose their adoption.
Further, if the directives will be used to impose prescriptive restrictions for the management of national forests to avoid legally--required rulemaking with public notice and comment, we would strongly oppose them. Please make clear in the Federal Register and in the directives that the national BMPs shall not curtail the ability of local forest managers to adopt less prescriptive or costly means that achieve the same water quality protections. Additionally, the directives should state that local managers would be required to obtain the approval of the Chief of the Forest Service before imposing a more restrictive and costly version of a national BMP to protect water quality.
BMPs should be used as a tool to assist the Forest Service with its environmental analysis. However, given the directives require each project to address the national BMPs spanning 177 pages in the National Core BMP Technical Guide, they could instead be used as an analytical weight that could potentially sink many projects and breed litigation to stop others in national forests. The final directives should clearly state that projects need only evaluate those BMPs that a project leader concludes apply to the project. Otherwise, opponents of the project will argue that the failure to address a certain national BMP in the project analysis violates the National Environmental Policy Act, the Clean Water Act, and other statutes.
RDC has serious concern with the definition of Aquatic Management Zone (AMZ) in the Forest Service Handbook 2509.19.05. The definition is confusing and does not make clear what area will be subject to the BMPs and is one of many definitions that supposedly define the breathe of the area subject to aquatic restrictions. The definition states “AMZs are inclusive of riparian areas as described in the planning rule.” This suggests that AMZs are something more expansive than “riparian areas” which the forest planning rule defines in expansive language as “three-dimensional eco-tones of interaction that include terrestrial and aquatic ecosystems that extend down into groundwater, up above the canopy, outward across the floodplain, up the near-slopes that drain to the water, latterly into terrestrial ecosystem, and along the watercourse at variable widths.” (36 CFR 219.19) We strongly urge the Forest Service to rethink the creation of yet another definition when there are already a plethora of definitions used in various forests such as Stream Management Zones, Riparian Reserves, and Riparian Conservation Areas.
With regard to Alaska, the proposed directives could impact timber harvest, mining, and other uses in both the Tongass and Chugach national forests, as well as potential indirectly impact adjacent non-federal lands. The industry is struggling to gain access to an adequate supply of federal economic timber to sustain current operations, which are a mere shadow of what they were just two decades ago. Thousands of local jobs have been lost and the Southeast Alaska economy is under stress. Virtually every timber sale in the Tongass has been litigated and the annual harvest has fallen from more than 450 million board feet to less than 36 million board feet.
A concern we have is that the national BMPs be consistent with or allow for Alaska specific BMPs such as provided for under the Alaska Forest Practices Act, which todays stands as a model for modern forest practices in protecting water quality and other forest resources.
In conclusion, we urge the Forest Service to avoid creating yet another costly layer of bureaucracy. The agency is already successfully implementing BMPs using state-by-state procedures. Virtually every BMP in the national core set already exists in current regulations, guidance, and procedures. Given uncertain costs of the program and unintended consequences, we join the Alaska Forest Association in urging the Forest Service to only consider essential new BMP objectives in a series of small, discrete steps rather than creating another large federal program. The NEPA process and other procedures have already sharply increased the expense and time required for the agency to accomplish its land management objectives and for industry to comply with the law. Perhaps what would be best for the agency and national forest stakeholders would be to find a path forward in streamlining existing policies and procedures, as opposed to expanding them.
We appreciate the opportunity to comment on the proposed directives.
Resource Development Council for Alaska, Inc.