NJ Forests and Air Quality At Risk From Pending Legislation

“Prescribed Burn” and “Forest Stewardship” bills are back

The Assembly Agriculture and Natural Resources Committee heard two forest related bills yesterday: the controversial “Forest Stewardship” bill that would allow commercial logging on State lands and the “prescribed burn” bill that would expand the current prescribed burn program (you can listen to the testimony here).

Tom Johnson at NJ Spotlight wrote about the Stewardship” bill (see: CONTROVERSIAL BILL COULD PERMIT COMMERCIAL LOGGING OF STATE FORESTS).

But Tom left some stuff out so I’ll just bullet a few points I and others made in testimony and then focus on the prescribed burn bill.

• I)  Forest Stewardship bill – A1775

1. Original intent remains

I reminded the Committee that the original title was a “Forest Harvest” bill and the original intent was not disguised: it was to cut timber.

In fact, the Farm Bureau June 10, 2013 testimony reveals that objective (and this was after the bill was renamed from “harvest” to “stewardship”):

“In the early 1980′s, the state stopped participating in timber sales. So the state lands that were managed in timber, up to that point in time, were an important part of attracting the timber industry to the State. The State owns half or more of the wooded lands, so its been on the back of smaller producers to attract competition to the state. And what they’ve ended up with is the one guy who wants to come and cut in NJ, kind of setting the market price. And so we’ve had a depressed value of our wood products.

We see, by the State re-entering into a managed timbering process, that more vendors will be attracted  to come into the state and then they’ll pick up those smaller [private] parcels … and we’ll see an economic benefit to our state, for the private forest lands as well as the public lands, because landowners will have more options in how they do those managed cuts.

The other part of it is that pretty much since the State stopped timbering, there has been a decline of the overall forest health. It not a matter of what people envision when they see, like down south in Georgia timbering where they do paper cutting and take everything out. This is selective cutting. It’s choosing the best woods at the appropriate time. Removing older trees to let younger trees grow… creating appropriate breaks in the forest canopy to encourage diversity of wildlife . All of that is what goes into the stewardship plan.

And then its the ability of the State to recoup those costs through the sale of the timber. … 

With the increased participation by the state we will see increased competition amongst those that harvest these products and better prices  which them improves the overall wood and timber industry in the state.

As I noted last June, DEP forest managers share the same “commodity” oriented approach to forests, revealed in this chart and text:

 An approximate, additional 652,800 cubic feet of wood are harvested on state lands annually for a total of approximately 2.1 million cubic feet harvested for commercial forestry annually. This is less than 4% of annual growth. Indicating that NJ’s timber resource is largely underutilized. 

As NJ’s forests mature and smaller trees grow into the larger size classes, the amount of sawtimber available on timberlands statewide is increasing as well.”   ~~~ NJ DEP “Statewide Forest Resource Assessment and Strategies” (2010)

2. Both the Governor and DEP rejected Forest Stewardship Council certification

I reminded the Committee that there were not only legal but institutional conflicts between DEP and FSC certification. If some view FSC as a safeguard, they are delusional – it’s not going to happen.

DEP made this perfectly clear in a June 10, 2013 letter to the Legislature – let me quote the pertinent text:

The DEP’s remaining concern would be a mandatory Forest Stewardship Council (FSC) certification required for any stewardship plans we develop … While we respect FSC and recommended incorporating the FSC standards into the legislation, this mandatory certification is an un-necessary and costly requirement.  The DEP is the steward of New Jersey’s environment; we do not need our work validated by somebody else. Moreover, this unnecessary requirement adds a significant financial cost to the program, which will approach approximately $100,000 in the first year.

3. Perverse incentives to log lands

Revenues generated from logging operations would be allocated back to the DEP forestry program. This is a bureaucratic incentive structure to log more state lands to support DEP staff. I’ve seen how this works for many years now in the various permit fee driven DEP programs. It is a formula for disaster.

4. Conflicts with allowable uses of State Lands purchased with Green Acres GSPTF bonds

A citizen activist named Bob Moss (I think with Sierra Club) testified that any commercial logging allowed by the bill on State lands purchased with Green Acres bond funds would be unconstitutional because the bond covenants and text of the authorizing ballot questions approved by the voters limits the use of purchased lands to conservation and recreational purposes.

5. Lack of Regulatory Safeguards

FSC standards and current DEP forestry management programs are not subject to regulation under various important NJ environmental laws that protect wetlands, water quality, soil erosion, steep slopes, flood hazards, and the Highlands Act.

The bill does not require that forestry activities comply with those law – that is a gaping loophole that must be closed.

[6. Real threats ignored – no afforestation or urban forestry policies or goals

The two biggest threats t NJ’s forests are climate change and developers’ bulldozers. Both are ignored.

In addition, the bill fails to include afforestation or urban forestry goals or policies – we should be encouraging afforestation of vacant and underutilized agricultural lands to increase NJ forest cover. Ditto for urban forestry, which has additional justification on climate change, air quality, and community aesthetics.]

II) “Prescribed burn” bill – A1275

This bill would authorize prescribed burning on public and private lands and eliminate important safeguards to protect  public health, environment, and property.

The bill was passed both houses last year but was pocket vetoed by Governor Christie.

While I support “prescribed burns” as  an ecological management tool in Pinelands forests (where it is scientifically justified and has the least public health, safety and nuisance conflicts due to low population density), the bill would apply statewide, including to north jersey hardwood forests adjacent to densely populated areas where signifiant public health, air quality, nuisance, and land use conflicts exist.

The bill is seriously flawed and I doubt that legislators considered or would support what the bill would do, particularly with respect to private property rights and liability standards.

I think EPA will object to the provisions of the bill that conflict with the Clean Air Act and gut DEP’s ability to enforce state air pollution control laws.

My sense is that this bill is being driven by certain conservation and farm groups who are unable to get private insurance to conduct burns on their property, and need this bill for liability protection.

There is a reason that the insurance industry will not insure “controlled burns” – they are dangerous!

As I wrote on June 2011: (This is what a “prescribed burn” looks like  -additional photos of an out of control burn are here)

It is not good public policy to pass such a bill.

The environmental groups supporting the bill were acting more in their own interests as private landowners seeking to avoid public accountability and liability, than stewards of the public interest.

In order to fix these major problems, I testified that the bill should be limited in scope to the Pinelands and to public lands, and that Sections 6 and Section 8 should be deleted (see below).

1. Not appropriate for north jersey forests and highly developed land use conflicts

I am not up to speed on the role of fire and the scientific and ecological rationale for controlled burns in north jersey hardwood forests.

But I am aware that controlled burns do get out of control and even if conducted fully under control raise major air quality, public safety, and nuisance conflicts due to high population density and road/traffic network in proximity to the forests.

In fact, last spring, a fireman was killed at a controlled burn at Round Valley State Park, see: Prosecutor: Thick smoke blinds driver who hit, killed N.J. fireman at Round Valley

2. Air quality issues

Smoke from fires is a significant source of air pollution, particularly fine particulate matter known as PM 2.5.

According to US EPA Guidance:

The major air pollutant of concern is the smoke produced. Smoke from prescribed fires is a complex mixture of carbon, tars, liquids, and different gases. This open combustion source produces particles of widely ranging size, depending to some extent on the rate of energy release of the fire. The major pollutants from wildland burning are particulate, carbon monoxide, and volatile organics. Nitrogen oxides are emitted at rates of from 1 to 4 g/kg burned, depending on combustion temperatures. Emissions of sulfur oxides are negligible.

Section 8.c. of the bill would eliminate DEP’s ability to enforce State and federal clean air laws by eliminating DEP jurisdiction and exempting controlled burns from air pollution control requirements:

c. Notwithstanding any State or local law, rule, regulation, ordinance, or resolution to the contrary, a prescribed burn conducted pursuant to this act, any rules and regulations adopted pursuant thereto, and an approved prescribed burn plan shall be deemed to not (1) be a source operation or source of an air contaminant, (2) be or tend to be injurious to human health or welfare, animal or plant life, or property, or (3) unreasonably interfere with the enjoyment of life or property, as those terms are used in the “Air Pollution Control Act (1954),” P.L.1954, c.212 (C.26:2C-1 et seq.), and any rules or regulations adopted pursuant thereto, or any similar provision of any municipal or county ordinance, resolution, or regulation. The provisions of this subsection shall also apply to smoke and ash caused by or arising from a prescribed burn. 

That would mean if a controlled burn created massive smoke related injuries (e.g. asthma attack or respiratory emergency) or nuisances, that local, country and state governments and citizens would have no recourse to pursue enforcement. That lack of accountability invites lax practices.

3. Eliminates common law protects and lowers liability and accountability standards

Section 8 also provides immunities and lowers the liability standard to a requirement that anyone injured by a controlled burn must demonstrate :”gross negligence”.

So, if your house were burned down or property damaged, you would probably not be able to sue to be compensated.

4. Violates private property rights

I am certainly no private property rights advocate, but even I was shocked by reading Section 6 of this bill.

I strongly doubt any legislator would publicly defend this section of the bill.

The bill would allow the NJ State Fire Marshall to trespass on your property and conduct a prescribed burn on your property, without your consent and over your objection.

If your property were damaged – e.g. barn burned down, crops destroy, animals killed –  the liability provisions in the bill would make it virtually impossible to sue to recover compensation for these damages.

I suggested that any controlled burns conducted on private property by State officials must be by consent of the land owner.

The sponsor, Assemblyman Dancer, promised to address these concerns and the bill was substituted for the version that passed both houses last legislative session on Jan 13 and was sent to the Governor.