Comments on Proposed State Riparian Standards

by Mitch Lansky

HC 60, Box 86 Wytopitlock Me 04497

1/18/02

The legislature has given the Maine Forest Service the task of creating statewide standards for managing riparian zones around streams, rivers, ponds, and lakes. Currently there are different standards in the Unorganized Territories (regulated by the Land Use Regulation Commission, or LURC), and the Organized Townships (regulated by the Department of Environmental Protection). The biggest difference in the two sets of standards is the lack of protection for smaller streams in LURC jurisdictions. Since smaller streams are more sensitive to disruption, and since the majority of a watershed's length is taken up in streams, this lack of protection means that current standards under LURC are ineffective at preventing damage from those who have little self restraint.

The following is a critique of a MFS draft of its proposed harmonized statewide standards.

Riparian zone functions. The state, I would hope, is not proposing new riparian zone standards merely for the sake of saying the riparian zones are regulated. The purpose, presumably, is to have regulations that protect important riparian zone functions. This raises the obvious question of what are the key functions of riparian zones and what structures best perform these functions.

Key functions of riparian zone buffers are to:

  • moderate extremes in water temperature caused by lack of shade on the water body and runoff flowing through heated soils;
  • stabilize stream banks, keeping streams narrow;
  • act as a barrier to siltation from exposed soils;
  • act as a filter to nutrient and other pollution;
  • protect and enhance stream habitat structure (large logs that can create eddies);
  • provide a source of food (in the form of leaves and invertebrates) for stream organisms;
  • provide habitat, nesting sites, and travel corridors for wildlife;
  • moderate extremes in water flow.
  • The type of riparian zone buffer needed depends on many factors including:

  • the size and type of water body (smaller water bodies can be more vulnerable to disturbance, in some circumstances);
  • the degree of shade near and around the water body (which can have an impact on water temperature);
  • the stand type (stocking levels for adequate shade depend on whether the stand is hardwood, mixedwood, or softwood);
  • the degree of soil disturbance nearby from roads, trails, and yards;
  • landscape characteristics that influence exposure to light or tendency for erosion (such as orientation, slope, or soil types); and
  • what lies beyond the riparian buffer (opening size, degree of soil disturbance, roads, trails, or development).
  • Recommendations from scientific literature. While for some isolated functions narrow, low-shade, with immature trees may work, such buffers would not work for all the functions at once. Wider buffers that are well-stocked with mature trees would work for all the functions at once.

    Stocking. In A review of the effects of forest practices on water quality in Maine, published by the University of Maine in 1996, Steve Kahl documented the vulnerability of small streams to impacts from temperature, siltation, and chemical changes and listed evidence that shade from around 70% of full stocking would be adequate to protect against the temperature impacts.

    The Maine Council on Sustainable Forest Management, in 1996 recommended in its Benchmark 1 for water quality, wetlands, and riparian zones that the state should "Establish and maintain windfirm stands with a continuous canopy closure of 65-70% next to all streams (both perennial and intermittent) mapped on US Geological Survey 7.5-minute quadrangles." The MCSFM recommended a minimum 75 foot buffer (with such stocking) for all 1st and 2nd order streams with no clearcutting within 250 feet.

    A 1991 publication of the USDA Forest Service on Riparian Forest Buffers: Function and Design for Protection and Enhancement of Water Resources recommended a 15 foot no cut zone, to encourage older-stand characteristics at stream side (for aquatic habitat structure, for detritus, and for stream bank stability) and concluded that 70% shading was best for cool-water fish, such as trout.

    Siltation. A study Assessing Compliance with BMPs on Harvested Sites in Maine: Final Report, by Briggs, Kimball, and Cormier, published by the University of Maine in 1996 documented siltation of streams from logging operations, even those using BMPs. The severity and frequency of such events was less when loggers followed BMPs. Ironically, a Forest Advisory Team 1996 report card that accompanied this BMP document found that despite northern Maine landowners having more knowledge of BMPs, more familiarity with guidelines, more requirements for logger compliance, and more advice from professional foresters, southern Maine landowners had a slightly higher (though not statistically significant) rate of compliance with BMPs. This demonstrates that excusing landowners from compliance because of training or professional advice may not always lead to desired results.

    The BMP study found that compliance was worst for some of the standards that had the most impact--such as stream crossings (63% scored a "D" or worse). One quarter of those who did comply with stream crossing BMPs and 1/3 for hard bottom stream fords had major sediment movement. In contrast, 95-100% of non-compliant sites for these BMPs had major sediment movement.

    Width. Steve Kahl, in his literature review, found that all non-stream crossing related sedimentation originated outside the 75 foot buffer on streams. He concluded that smaller streams are more vulnerable than larger water bodies to impacts from sedimentation, temperature, increased water flow, and chemical change and may not be served by narrow buffers.

    A 1994 Master's Thesis by Brad Meiklejohn, The value of buffer strips as riparian habitat in northern forests, looked at buffers as habitat for various species, with a main focus on birds. For smaller (75 foot) buffers, Meiklejohn found that interior species (Bay-breasted, Blackburnian, Black-throated green, and Cape May warblers, Ovenbirds, and golden-crowned kinglets) nearly disappeared, and edge species increased dramatically. Interior species fared better in the 250 foot buffer zones, but because of increases in nest-predator species, Meiklejohn questioned if these were viable breeding populations. He recommended wider buffers that were linked to adjacent forest habitat to allow for genetic exchange and wildlife movement.

    Adequacy of proposed rules. The MCSFM had recommended (Benchmark 3) that uniform riparian zone standards for the state be established by 1998, and that these standards should be "no less stringent than current DEP and LURC standards combined." While a bit off schedule, the MFS is finally attempting to address this worthy goal. Of special interest is the attempt by the MFS to close the LURC loophole for protection of the most sensitive headwater streams--those draining less than 300 acres.

    Flexibility? The MFS rules give a menu of options for water bodies of different sizes. This is supposed to offer landowners "flexibility." While landowners always have the option to choose standards that are more protective, even than state standards, what this menu does is give landowners the option to choose the least protective standard that allows cutting the most wood. The major options for unmapped or intermittent streams are to either retain 60 square feet of basal area of trees bigger than 1 inch in diameter in a "variable" width buffer, or to cut no more than 40% of the basal area in a 50 foot buffer. Landowners are given a third option to come up with an alternative "equal" to these options.

    Residual stocking. If one is starting out with mature, closed-canopy hardwood stands (around 100 square feet of basal area at around 8 inch-average diameter) both rules would come up with a similar residual stocking, though the 40% rule would have that stocking all in trees over 4.5 inches in diameter. If, however, one is starting with a closed-canopy, mature softwood stand (average diameter of around 8 inches), the basal area might be around 180 square feet. The 40% cut rule would take this stand close to B-line stocking and leave 60% of full shade. This would be close to recommended levels of 65% of the MCSFM. The 60 square foot rule, however, would leave 33% of full shade and would allow removal of nearly all mature trees. Those choosing to come up with an option equal to the 60 square foot rule would also come up short with protecting the water body.

    With first and second order streams, the 60 square foot option requires retention of at least 40 square feet (a clearcut is only 10 square feet less than this) of trees larger than 4.5 inches in diameter in a "variable" width buffer. But it still, in the case of softwoods, would leave only 33% of full shade. The 40% rule is again for a 50 foot buffer. In both cases, for 2nd order streams the standards can be less stringent than existing DEP standards of 75 foot buffers with a 40% removal rule and limits on opening size.

    The 60 square foot rule, therefore, is a one-size-fits-all rule that does not take into consideration stand type. The 40% rule, because it focuses on what is removed, rather than what is retained, can come up with inappropriate results if the starting stand has less than a closed canopy. Removing 40% every ten years would lead to further stand degeneration. A more rational approach is to specify what should be retained, rather than what can be removed. The Department of Natural Resources in Nova Scotia is recommending another one-size-fits all basal-area requirement, but its figure is 90 square feet per acre (see http://www.gov.ns.ca/natr/wildlife/thp/html/slide9.html).

    Width. The MFS, in its justification for proposed rules (in the side-by-side comparison) stated that recent scientific literature suggests that buffer strips of 1 to 1.5 times average tree height would provide adequate protection of water quality for small streams. Of course, this depends on just what aspect of water quality one is trying to protect. And, of course, this depends on tree height. If the average canopy tree is 70 feet high, then a buffer 1.5 times as big would be more 100 feet wide. If the biggest tree is a few inches in diameter and only 25 feet high, then a buffer 1.0 times as big would be 25 feet wide. Obviously, this rule-of-thumb would be deficient at the lower end of the scale. While the MFS states how important third order streams are for fisheries, headwater streams are absolutely crucial habitat for many aquatic organisms, and the multiple qualities needed by these organisms deserve protection as well.

    The 50 foot buffer recommended for smaller water bodies is toward the lower end of this rule-of-thumb. As habitat, 50 feet leaves all edge, no interior. It is questionable if such a stand, if it is softwoods surrounded by clearcuts, can be effectively windfirm. Whether the 50 foot width would adequately protect various other needs of a stream depends on such factors as stand type, slope, orientation, soil type, and the degree of soil disturbance beyond the buffer. If, for example, the land is steep, a 50 foot width may be inadequate to prevent siltation if there is heavy soil disturbance beyond the buffer.

    The "variable width," recommended for the 60 square foot rule, is, as so far described by the MFS, unworkable as an enforcement tool. The MFS does not suggest a mean around which the proposed width should vary. This opens up the possibility of relying on a landowner or logger's judgment. If such individuals are the types that want to get away with as much as possible as fast as possible, one wonders how narrow the buffer might get. Buffer width should vary based on biological needs, not just landowner wants.

    Exemptions and relaxations. The MFS proposes to exempt landowners from following the standards if the landowners have independent third-party certification. While there are provisions that offer some protection to the state, including disclosure of audits and guidelines to the MFS and the ability of the MFS to revoke this exemption, such an exemption sends out a confusing message. Most certification schemes require landowners to meet or surpass state forestry and environmental standards. Exempting landowners from such a requirement seems to be an odd reward for those claiming to have "well-managed forests."

    State standards should be considered a floor, not a ceiling, so this minimum requirement should not be seen as a major burden. Indeed, the requirement to meet or exceed state regulations should also not be seen as a major accomplishment. After all, all landowner must meet or exceed state regulations. It is required by law.

    Nearly 4 million acres of Maine forests are currently certified by either SFI or FSC. Would the exemption on certification mean that the state would not look as carefully for violations in this huge area under the assumption that the certifiers are already looking? Certifiers are not watching large landholdings constantly for violations of state policies. Indeed, certification is not revoked if some riparian zones are not adequately managed or because some roads or trails lead to siltation. One merely has to look at publically-available summary documents to see that the certifiers give grades, and these grades have to be "good enough," not perfect. Indeed, sometimes even landowners certified under FSC do things that are clearly sub-par. In such cases, these landowners deserve the same consequences that all other landowners are subject to. .

    Similarly, the "relaxation" of standards for openings for those who have easements raises questions. The public is spending money to ensure a higher level of protection. Allowing lower standards for those with easements seems like a strange reward for those paid to have higher standards.

    Recommendations. Based on the above discussions, I have the following recommendations for the MFS on its new standards:

  • Consider the multiple functions of riparian zones. The Department of Natural Resources of Nova Scotia lists these functions to help justify its higher recommended level of riparian stocking. I assume that riparian zones in Nova Scotia and Maine serve similar functions. If we do not deal with the multiple functions of riparian zones now, we will have to later, if we are to truly have a sustainable forest.
  • Recommend retention that takes into account stand type and encourages mature trees. This would mean that stream side, there should be a no-cut zone to encourage the larger trees so important for stream function. Stocking should approximate B-line by stand type. If this is too difficult for enforcement, then the following numbers might do the job:
        1. 60 sfba for hardwood,
        2. 75-80 for mixedwood, and
        3. 100-110 for softwood. Obviously if stocking is below the recommended level, then the landowner probably should not cut. If the site cannot support mature trees or recommended levels of stocking, then the MFS can make allowances.

    Recommend buffer zone widths that take into account slope, and degree of disturbance outside the zone as well as need for wildlife habitat, nesting, and travel corridors. If the MFS can come up with varying buffers for soil disturbance based on slope, it can do the same for forested buffers. A starting point can be 75 feet, as recommended by the MCSFM. If stocking outside this zone is above the C-line and roads and trails that expose bare soil are kept at a distance of 100 feet or more than no adjustments are needed. If stocking is below C-line or below the clearcut threshold in an area that makes up a majority of a certain length, the riparian management area should be expanded accordingly. Similarly, if there is a steep slope in the riparian area, the riparian area should be wider by a formula. (This is recommended by DNR in Nova Scotia).

    Responses to possible objections.

    Recommended stocking levels are too high. Actually, the numbers listed are rather low, and would be appropriate for stands that average only 5 or 6 inches in diameter. It would actually be preferable to have larger diameter stands closer to the water body. That is why some authorities, including the USDA Forest Service, recommend a small, no-cut zone at streamside.

    Leaving so much wood behind would be an economic hardship that would hurt the industry. The recommended stocking levels are similar to stocking levels recommended for managing for productivity and quality of a stand. Leaving such residual stocking may be a hardship for liquidators, but it is desirable for those who are managing for the long term for quality and value. Research by Paul Sendak from the Penobscot Experimental Forest on Managed Forest Value found the highest returns from selection cutting on fairly short cutting cycles. Actually, continued heavy cutting, leaving poor stocking, may lead to future hardships to the industry because growth and quality are not optimized by heavy cutting. Obviously, if leaving recommended stocking is not practical for a given stand, the MFS can certainly be flexible.

    If loggers are paid by volume, then taking the time to take more care could lead to loss of income. That managing for certain desired outcomes might lead to a loss of income for loggers is a clear indication that the way of paying loggers is inappropriate. What is needed is a method of payment that rewards loggers for reaching desired outcomes, rather than penalizes them. Inappropriate payment methods should not be used as an excuse to do inappropriate management.

    This rule making process is an opportunity to educate the public and landowners about the important roles of riparian zones for protecting water quality as well as aquatic and shoreline wildlife habitat. I hope that the MFS will use this opportunity to actually solve some of the problems of riparian management zones, rather than just making new rules that still allow substantial problems to continue.