All posts by Karen

Proposals to expand water quality protection standards could affect private landowners

Several actions taken by or against the US Environmental Protection Agency last spring regarding water quality could ultimately affect timber harvest and woodlands management practices.

The EPA and the U.S. Army Corps of Engineers issued draft guidance in April on what constitutes the EPA’s jurisdiction under the Clean Water Act. EPA describes “other waters” as “all other waters such as intrastate lakes, rivers, streams (including intermittent streams),mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce…” The guidance proposes to substantially broaden EPA’s jurisdiction over water resources on private lands.

EPA was also petitioned in April to establish numeric water quality limits for nutrients in the Mississippi River and the Gulf Coast of Mexico.

Finally, the agriculture industry is suing the EPA to contest the agency’s novel, multi-state watershed pollution limit for nutrients and sediments in the Chesapeake Bay.

Although most of the above actions do not directly affect Kentucky woodland owners, the impending decisions may have broad implications for all private landowners.

New Report on Payment for Watershed Services (PWS)

From the USDA Office of Environmental Markets (OEM):
We’re pleased to share with you a new report produced by EcoAgriculture Partners with funding and support from OEM and the U.S. Endowment for Forestry and Communities.  Innovations in Watershed-Based Conservation in the United States: Payments for Watershed Services for Agricultural and Forest Landowners surveys payments for watershed services (PWS) schemes to understand their current role in the U.S. and future potential for increasing cost-effective watershed protection on private lands.
Water is crucial for many human needs; yet water resources in the United States face serious threats from increasing pollution and overuse. PWS can address these challenges effectively as a complement to USDA conservation programs and other existing incentives. Under PWS programs, farmers, ranchers, and forest landowners can choose to provide watershed protection services—improvements to water quality or increases in water efficiency—and in return receive payments or other forms of compensation from the beneficiaries of these services. PWS can be more affordable than traditional engineering solutions while offering co-benefits including job creation, economic development, cleaner air, and open space.
In addition to the report, a map-based inventory of the identified PWS systems (http://www.conservationregistry.org/search/basic_search?search_term=pws) is available online through The Conservation Registry, a repository of conservation projects in the United States. The PWS inventory is a “living” database and can be updated regularly. Combined, the report and inventory are intended to help policymakers, landowners, conservationists, and water management professionals explore PWS opportunities in their areas.
Many thanks to EcoAgriculture Partners, the U.S. Endowment for Forestry and Communities, and the PWS practitioners who supported this project for their hard work!
USDA Office of Environmental Markets
http://www.usda.gov/oce/environmental_markets/index.htm

USDA promotes wood in green building rating systems

U.S. Secretary of Agriculture Tom Vilsack made a major announcement March 30th strongly promoting wood as a green building material and recognizing multiple green building rating systems. According to the Sustainable Forestry Initiative, the USDA announcement was made during the International Year of Forests celebration in Washington, DC. The event was co-hosted by the American Forest Foundation, the National Association of State Foresters, and the USDA Forest Service.

According to a March 30th USDA press release Secretary Vilsack laid out a three-part plan addressing the Forest Service’s and USDA’s current green building practices. The strategy includes the following parts:
1. The U.S. Forest Service will preferentially select wood in new building construction while maintaining its commitment to certified green building standards. USDA will also make a commitment to using wood and other agricultural products as it fulfills President Obama’s executive order on Federal Leadership in Environmental, Energy, and Economic Performance.
2. The Secretary has asked the U.S. Forest Service to examine ways to increase its already strong commitment to green building by reporting to him on ways to enhance the research and development being done around green building materials.
3. The U.S. Forest Service will actively look for opportunities to demonstrate the innovative use of wood as a green building material for all new structures of 10,000 square feet or more using recognized green building standards such as LEED, Green Globes or the National Green Building Standard.
The plan explicitly recognizes the Green Globes standard and the National Green Building Standard, both of which recognize multiple forest certification standards. Opening the door to other green building rating systems increases opportunities for third party certified wood to be used and recognized in green buildings.
“This is just the market signal we need to expand markets for sustainably grown wood from ATFS,” said Tom Martin, President and CEO of the American Forest Foundation.

Estate Planning for Forest Landowners

Regardless of the number of acres, woodland owners need to make arrangements for their estates while they are living and while they are competent to do so. An extensive guide is now available from the US Forest Service specifically for family-owned forests.

Estate Planning for Forest Landowners:
What Will Become of Your Timberland?
2009. General Technical Report SRS-112
Available as a pdf download at http://www.srs.fs.usda.gov/pubs/gtr/gtr_srs112.pdf

Although the report is more geared to large working timber holdings, its comparison examples of the impact of federal estate tax on family assets with and without estate planning are chilling. In the scenario (chapter 19) with no estate plan estate taxes could equal nearly one-eighth of the original estate. In the second example a simple plan leaving the estate to the surviving spouse avoids immediate estate tax. But the subsequent demise of that spouse could incur an estate tax equal to nearly one-fourth of the original combined estate. The final scenario presents three strategies that could reduce the example family estate tax bill by nearly $1.5 million compared to the simple plan. (These hypothetical examples are based on a family forest estate with assets valued at $10 million.)

The planning guide states that on the national level nearly three-fifths of all forest land is privately owned. More than four-fifths of that land belongs to nonindustrial owners. It also finds that the typical nonindustrial private forest owner is 60 years old. The importance of and urgency for timely forest estate planning should by now be evident. If you are still thinking it’s somebody else’s problem, complete the thirteen question “estate planning readiness” quiz on page 5 to better understand where you are in the process.

According to the book’s abstract, its purpose is to provide quidelines and assistance to nonindustrial private forest owners and the legal, tax, financial, insurance and forestry professionals who serve them on the application of estate planning techniques to forest properties. The book presents a working knowledge of the federal estate and gift tax law as of September 30, 2008.

Timber Theft: A Kentucky Overview

Timber theft is a common occurrence in Kentucky. Successful prosecution of perpetrators is not. Nina Cornett, KWOA member and long-time advocate for victims of timber theft, has graciously provided us with an outline of her extensive experience, research and interviews with timber theft victims and investigators. Cornett urges anyone who has had timber taken from their property to be fully aware of what they may face in the civil and criminal legal systems should they desire to prosecute. Cornett posits that successful prosecutions are rare and only changes in the laws addressing these thefts and an elevation of the importance of preventing and redressing these crimes will alleviate the problem.

For a full copy of Ms. Cornett’s research, please email her at Ngcornett@aol.com.

For a link to the University of Kentucky’s website regarding timber trespass go to www.ca.uky.edu/forestryextension/timbertrespass.php.

The KWOA winter newsletter will publish an article about a recent successfully prosecuted timber theft case. Stay tuned!

TIMBER THEFT – WHAT IT’S LIKE TO BE A VICTIM

“What’s all the fuss about a few trees?” (Purported statement by relative of logger indicted for stealing more than a hundred trees and suspected of stealing many more)

“The majority of timber theft occurs under what has been deemed a ‘culture of theft’ [emphasis added]. This [culture] is responsible for the belief that taking. . .trees here or there. . .has no real ‘harm’ but is necessary to allow the logger to ‘make a buck’. (GAP: Field Guide to Timber Theft)

“What murder case do you want me to stop working on to investigate your timber theft?” (Question by Sheriff to more than one victim)

“Why are you clogging up the courts with a civil case?” (Question by Commonwealth’s Attorney to Sheriff’s Deputy who investigated a timber theft and asked for a criminal prosecution)

“Go file a civil suit.” (Statement to a number of victims by legal authorities)

“Many times criminal acts are hidden under the cloak of civil remedy.” (GAP: Field Guide to Timber Theft)

“This won’t come to nothing. You know they [the victims] aren’t going to have the kind of money you need to get a survey and get a timber consultant. He [the logger] don’t have to worry.” [reported statement by relative of person suspected of timber theft.]

“I have heard through the rumor mill that________________ bragged that they had in fact stolen your timber. _________________________ has apparently said the same thing according to the sources, none of which are willing to give a statement to these comments”. (Prosecutor to victim of timber theft after a trial in which an accused timber thief got off)

“The reason people continue to steal timber is because they can.” (statement by timber theft victim)

TIMBER THEFT: WHAT A VICTIM NEEDS TO KNOW

A. Victims, Losses, and Victimization Methods
1. Victims.
1. Losses
2. Victimization Methods

B. Recourse
1. Criminal Law
2. State Civil Action
3. Federal Racketeering Statute

C. Obstacles:
1. “Boundary dispute”
2. “You’re not from here.”
3. “Clogging” the courts
4. Foot-dragging

D. Property rights

E. “Get-Even/Strike First” Warrant:
1. The “Keep off your own land” tactic.
2. The Fake charge
3. “Harassment without contact”
4. Countersuit for Defamation Threat

F. The “entry” fee
1. Survey costs
2. Timber Appraisal
3. Witness Fees
4. Legal Fees

G. The Loss Valuation problem
1. “Clean Water Act” limitation
2. “Can’t count in court” problem
3. “Garage” analogy

H. The “Legal” aspect
1. Finding a lawyer
2. Dealing with legal tactics; evidence gathering, etc
3. Bar Association Futility
4. Rights in court.
5. Be the Criminal

I. Trial Issues:
1. Delays
2. “Don’t get me involved.”
3. Reluctance to testify
4. “Let’s Settle It” issue

J. Incentivizing the Thief:
1. Ray’s case
2. Jeannette’s situation
3. “Undergoing chemotherapy”
4. Nobody goes after the “fence” or the transporter
5. Bad Actor” if pollute water, but not if steal.

K. What Other States Do

L. Where to from Here?

Family Estate Tax Deferral Act of 2010

Source: American Forest Foundation

In early August U.S. Senators Diane Feinstein (D-CA) and Mike Crapo (R-ID) introduced legislation in the Senate that would help to fix the estate tax for family forest owners and farms. S. 3664, The Family Estate Tax Deferral Act of 2010, will help preserve forest land by helping families avoid the pressure of selling to pay taxes when land is passed down from one generation to the next.

If the estate tax is not reformed before 2011, any estate worth over $1 million will be subject to a 55% tax. This will affect many landowners, and may force some of them to sell or harvest their timber unsustainably in order to pay the tax.

S. 3664, the Feinstein-Crapo bill, is similar to the Thompson bill, HR 5475, in the House. The bill would provide family forest owners with an exemption from the estate tax, if they keep the land in their family and manage it as a forest. Landowners can harvest, if they harvest consistent with a forest stewardship plan.

More information about the bill and contacting your senators is available from the American Forest Foundation.

Emerald ash borer quarantine specifics addressed

By Katie Pratt

LEXINGTON, Ky., (Jul 1, 2009)

Recently, the Kentucky Office of the State Entomologist, in consultation with the Kentucky Department of Agriculture and the University of Kentucky College of Agriculture, issued a quarantine for 20 counties due to the emerald ash borer. Since the quarantine was issued, questions have arisen about the emerald ash borer, including controlling its spread and effects on ash trees.

The emerald ash borer attacks ash trees. Within several years, it can kill a tree. Thus far, the emerald ash borer has been collected at sites in seven Kentucky counties: Fayette, Franklin, Jessamine, Jefferson, Kenton, Campbell and Shelby. All of these counties are included in the quarantine along with neighboring counties or counties with a high number of ash trees: Boone, Bourbon, Carroll, Gallatin, Grant, Harrison, Henry, Oldham, Owen, Pendleton, Scott, Trimble and Woodford counties.

“The quarantine prevents the transportation of all hardwood species of firewood, ash trees, lumber, nursery stock or other material where the emerald ash borer is suspected into a non-quarantined area without a certificate or limited permit,” said John Obrycki, state entomologist and chair of the UK Department of Entomology.

Permits also are needed if ash wood products are transported from one state to another state that has quarantined areas. Untreated products in a quarantine area may be moved out of the area with a permit between October and March, which is the pest’s non-flight season. Wood materials moved within Kentucky’s quarantined area do not need a permit. No permit is needed on ash products and firewood moving into a quarantined area as long as they did not originate in a quarantined area in another state or were not transported through a quarantined area.

“The idea of the quarantine is to limit the movement of the pest,” said Carl Harper, UK senior nursery inspector.

To obtain a limited permit or certificate, individuals must have their wood products inspected by a member of the U.S. Department of Agriculture or the Office of the State Entomologist. To obtain a certificate or limited permit, contact the Office of the State Entomologist at 859-257-5838.

Individuals with ash trees should inspect their trees for the pest. The emerald ash borer is a small, metallic green bug. If the pest is present in a tree, it will leave pronounced D-shaped holes in the bark. If people see holes in the bark but are unsure if they were caused by the emerald ash borer, they may want to take a knife and smooth out the bark. The D-shape hole should become apparent.

A treatment to control emerald ash borers containing the chemical imidacloprid is available at most major garden centers; but it is expensive, so it may not be cost effective for an individual to treat infected ash trees.

Possible infestations should be reported to the Emerald Ash Borer Hotline at 1-866-322-4512 or the state entomologist’s office at 859-257-5838.

More information on emerald ash borer can be obtained at the National Emerald Ash Borer Web site at http://emeraldashborer.info, on the Kentucky Office of the State Entomologist Web site at http://www.uky.edu/Ag/NurseryInspection/, or on the UK Entomology emerald ash borer Web site at http://pest.ca.uky.edu/EXT/EAB/welcome.html

 

Foresters obtain tree farm inspector certification

On April 14, 2009, 15 industry and consultant foresters underwent American Tree Farm Inspector Training. This training provides the background needed to inspect and re-inspect Kentucky forested land which can then be certified in the American Tree Farm System (ATFS). All Tree Farm inspectors volunteer their time to work with and inspect Kentucky Tree Farm lands. Training was held at Domtar Paper Company, LLC-Hawesville, KY. The training facilitator was Pam Snyder, Forest Management Chief, Kentucky Division of Forestry. The training was sponsored by the Kentucky SIC (Sustainable Forestry Initiative Implementation Committee).

Fifteen industry & consultant foresters graduated from the American Tree Farm System Inspector Training held at Domtar Paper Company, LLC-Hawesville, KY Mill on April 14th, 2009. Pictured are from left to right (front):  David James, John Williams, Steve Rogier, Pam Snyder KDF instructor, Ken Negray, Tom Broadfoot, Dan Allard.  Back:  Scott Shouse, Melvin Hack, Cary Perkins, Tim Arnzen, Justin Law, Mike Ladd, Darrel Fulghum, Larry Mahler, and Chris Fry.
Fifteen industry & consultant foresters graduated from the American Tree Farm System Inspector Training held at Domtar Paper Company, LLC-Hawesville, KY Mill on April 14th, 2009. Pictured are from left to right (front): David James, John Williams, Steve Rogier, Pam Snyder KDF instructor, Ken Negray, Tom Broadfoot, Dan Allard. Back: Scott Shouse, Melvin Hack, Cary Perkins, Tim Arnzen, Justin Law, Mike Ladd, Darrel Fulghum, Larry Mahler, and Chris Fry.

In August, 2008, the Programme for the Endorsement of Forest Certification (PEFC) endorsed the American Tree Farm System. As a result of this endorsement Kentucky tree farms are now third party certified, and are recognized by the Sustainable Forestry Initiative (SFI) as meeting the standards to qualify tree farms to provide SFI certified wood. The ATFS supports recognized requirements that assure sustainably managed forests. The mission of ATFS is to promote the growing of renewable forest resources on private lands while protecting environmental benefits and increasing public understanding of all benefits of productive forestry.

The ATFS is sponsored nationally by the American Forest Foundation, a 501c3 non profit organization promoting the sustainable management of forests through education and outreach to private forest landowners. Kentucky currently has 801 certified tree farms covering 270,729 acres. Kentucky’s Tree Farms are dedicated to producing wood products, maintaining wildlife habitat, improving water quality, and providing outdoor recreational opportunities. To be eligible for tree farm certification, a landowner must have a minimum of 10 forested acres, have a commitment to practice sustainable, long-term forest management , and demonstrate proactive forest management involvement.

To obtain more information on Kentucky’s Tree Farm Program, contact the Kentucky Division of Forestry at 502-564-4496, or any of the newly trained ATFS inspectors, or visit www.treefarmsystem.org or www.kytreefarm.org.

 

Summary of definition for “renewable biomass” in proposed federal legislation

Summary of definition for “renewable biomass” relative to trees and forest as contained in American Clean Energy and Security Act of 2009 (HR 2454, Sections 101 and 312) and the compromise draft as proposed by Senate Energy and Natural Resources Committee (SENR)

Available Biomass-General

HR 2454

· Non-hazardous vegetative material from yard waste and rights-of-way trimmings

· Trees, brush, slash and residues removed from within 600 feet of buildings, campgrounds, or routes designated for evacuation as designated by emergency preparedness official

· Trees, brush, slash and residues removed from within 300 feet of paved road or utility corridor

· Residues/ by-products from milled logs

SENR

· Non-hazardous organic residues and by-products from milled logs

· Municipal waste stream materials that include trees, trimmings, yard waste, pallets, railroad ties, crates, and solid wood debris from construction and manufacturing

· Hazard trees and brush removed to maintain rights-of-way and public roads

· Trees, trimmings and brush removed from immediate vicinity of buildings and campgrounds for purposes of reducing risks from wildfire

· Removal or eradication of invasive plant material as defined in Executive Order 13112 (42 USC 4321)

Available Biomass on Non-federal lands: Plantations

HR 2454

· Trees, brush, slash, residues and interplanted energy crops originating from actively managed tree plantations

· Plantation must have been established prior to enactment of legislation; or

· Plantation may be established on land that was cultivated, fallow, or non-forested on the date of enactment

· Logging residue, thinnings, cull trees, pulpwood and brush and species that are non-native and noxious from stands planted and managed to maintain or restore native forest types after date of enactment

· Dead or damaged trees associated with fire, infestations or natural disasters if removed within 5 years of impact

SENR

· Slash, brush and trees from land that was planted for the purpose of restoring a naturally regenerated forest

· Slash, brush and trees that had been planted at time of harvest and on the date of legislative enactment was either cropland, fallow, pasture, or planted forest land

Available Biomass on Non-federal lands: Naturally regenerated stands (Non-plantation)

HR 2454

· Trees, logging residue, thinnings, cull trees, pulpwood and other brush originating from naturally-regenerated forests or non-plantations that were removed to reduce hazardous fuels or prevent infestations from insects or disease.

· Dead or damaged trees associated with fire, infestations or natural disasters if removed with 5 years of impact

SENR

· Slash, brush and trees that at time of harvest was from naturally regenerated forests

Available Biomass-Federal Lands

HR 2454

· Material, pre-commerical thinnings and invasive species originating from National Forests and other public lands pursuant to 43 USC 1702

· Material removed as part of preventive treatment to reduce hazardous fuels, restore ecosystem health, contain insect and disease infestations and associated with a federally recognized timber sale

SENR

· Slash and brush and trees on National Forests and public lands (per 43 USC 1702) that are by-products of ecological restoration, control of insect and disease infestation, or hazardous fuel reduction

· Forests killed by insect or disease infestation or natural disaster

Restrictions and Prohibitions- Non-federal lands

HR 2454

· Renewable biomass may not be used from either plantations or naturally regenerated forest stands if such forests are “high conservation priority” lands defined as follows:

o Globally or state ranked as imperiled or critically imperiled per State Natural Heritage Program; OR

o Old-growth or late succession as identified by State Forester or relevant State agency with regulatory jurisdiction for forestry activities

SENR

· Identifed by the Secretary of Agriculture (or Secretary of Interior if Indian Tribal Land) as “conservation forest land” and harvested subject to practices that maintain restoration of species, ecological systems and communities

· “Conservation forest land” includes:

o Land that contains species or ecological system or community at risk of state or global level extinction or elimination; and

o Determined by best available science and data of the State or Indian Tribe; and

o In consultation with the State

o “Conservation forest land” may not be removed from such status as a consequence of land management practices that occurred on or after enactment/ designation and that contributed to elimination of species or ecological system for which it was designated

Restrictions and Prohibitions- Federal Lands

HR 2454

· Renewable biomass not available from components of the National Wilderness Preservation System, Wilderness Study Areas, Inventoried Roadless areas, old growth or mature forests, National Landscape Conservation Systems, National Monuments, National Conservation Areas, Designated Primitive Areas, or Wild and Scenic River corridors.

· Harvested in environmentally sustainable quantities as determined by appropriate Federal land manager

· Harvested in accordance with Federal and State laws pursuant to applicable land management plans

SENR

· Renewable biomass material may not be used as part of maintaining unpaved roads on federal land

· On federal lands renewable biomass may not be used from components of the National Wilderness Preservation System, National Landscape Conservation Systems, National Monument, or other areas designated by Congress for conservation purposes

· Harvested in accordance with applicable law and land management plans in quantities and practices that contribute to restoration of ecological sustainability

· Material does not meet utilization standards or exceed minimum size standards for sawtimber

· Renewable biomass material may not be harvested from old-growth or late successional forest unless

o Removal is byproduct of ecological restoration treatment that maintains or contributes to restoration of structure and composition of an old-growth forest

Interagency Biomass Sustainability Study

HR 2454

None specified

SENR

· Secretaries including Administrator for Environmental Protection Agency required to assess impacts of biomass harvesting for energy production on landscape-level water quality, wildlife habitat, biodiversity, “conservation forest land.”

· Study required no later than 5 years after date of enactment and every 5 years thereafter

· Study based on best available data

· Recommendations from Secretary as appropriate to reduce impacts

· Public participation required

Governance and Administrative Authority

HR 2454

· Intent is apparently to assign to Administrator for the Environmental Protection Agency in that the definition for renewable biomass is associated with amendments to Title VII of the Clean Air Act

· Rules will be required to develop process, protocols, monitoring and enforcement provisions

SENR

· The Secretary of Agriculture is responsible for administering provisions of the statute as it applies to National Forests and non-federal land

· Rules will be required to develop process, protocols, monitoring and enforcement provisions

Mike Countess

Policy Analyst

Southern Group of State Foresters

May 25, 2009