January 30, 2015

1 NOAA/EPA FINDING THAT OREGON HAS NOT SUBMITTED A FULLY APPROVABLE

COASTAL NONPOINT PROGRAM

FOREWORD

This document contains the bases for the fi nding by the National Oceanic and Atmospheric Administration (NOAA) and the United States (U .S.) Environmental Protection Agency (EPA) (collectively, the federal agencies) that the State of Oregon (State) has not submitted a fully approvable Coastal Nonpoint Pollution Control Program (Coastal Nonpoint Program) as required by section 6217(a) of the Coas tal Zone Act Reauthorization Amendments of 1990 (CZARA), 16

U.S.C. 1455b. NOAA and EPA arrive at this deci sion because they find that the State has not adopted additional management measures applicable to forestry that are necessary to achieve and maintain applicable water quality standards und er Clean Water Act section 303 and to protect designated uses. NOAA and EPA first identified and notified the State of the need to implement

the additional measures in 1998.

On January 13, 1998, the federal agencies appr oved the Oregon Coas tal Nonpoint Program subject to specific conditions (see Oregon Conditional Approval Findings ). Since then, NOAA and EPA have been working with the State to address the conditions. The State has made incremental modifications to its program a nd has since met most of those conditions.

On December 20, 2013, the federal agencies provided notice of their intent to find that the State has not fully satisfied the conditions related to new development, onsite sewage disposal systems (OSDS), and additional management measures for forestry (see Oregon Coastal Nonpoint Program NOAA/EPA Proposed Finding ). The federal agencies invited public comment on the proposed findings, as well as on the extent to which those findings s upport a finding that the State has not submitted an approvable pr ogram under CZARA. Based on comments and concerns the federal agencies received about agriculture nonpoint sour ce management in the State, the federal agencies also invited public comment on the adequacy of the State’s programs and policies for meeting the CZARA 6217(g) agri culture management measures and conditions placed on Oregon’s Coastal Nonpoint Program. Becau se the December 20, 2013, notice of intent did not propose a specific decision on wh ether Oregon had satisfied the CZARA 6217(g) agriculture management measures and the public did not have an opportunity to comment on a specific proposed decision and rationale for that decision, the adequacy of Oregon’s agriculture programs is not a basis for the findings that Oregon has not submitted an approvable coastal nonpoint program. (For a summary of the comments received and the fede ral agencies’ response to them, see NOAA and EPA Response to Comments Regarding the Agencies’ Proposed Disapproval Finding that Oregon has Not Subm itted a Fully Approvable Coastal Nonpoint Program .)January 30, 2015

2 In response to NOAA and EPA’s proposed finding s, Oregon provided an additional submission in support of its coastal nonpoi nt program on March 20, 2014 (see Oregon’s Response to Proposed Disapproval Findings ). 1

NOAA and EPA have carefully reviewed the pub lic comments received and the State’s March 2014 submission and have made a finding that Oregon has not submitted a fully approvable coastal nonpoint program. This decision is made because the State did not address the additional management measures for forestry condition. Ba sed on information the State provided in March, the federal agencies believe that Oregon has now satisfied the conditions for new development and OSDS, so those conditions are no longer a basis for the finding that Oregon has not submitted an a fully approvable coastal nonpoint program.

For further understanding of term s in this document and the basis of this decision, the reader is referred to the following documents:

 Guidance Specifying Management Measures for Sources of Nonpoint Pollution in

Coastal Waters (EPA January 1993);

 Coastal Nonpoint Pollution Control Progr am: Program Development and Approval

Guidance (NOAA and EPA January 1993);

 Flexibility for State Coastal Nonpoint Programs (NOAA and EPA March 1995);

 Final Administrative Changes to the Coastal Nonpoint Po llution Control Program Guidance for Section 6217 of the Coastal Z one Act Reauthorization Amendments of 1990 (CZARA) (NOAA and EPA October 1998);

 Policy Clarification on Overl ap of 6217 Coastal Nonpoint Pr ograms with Phase I and II Stormwater Regulations (NOAA and EPA December 2002); and

 Enforceable Policies and Mechani sms for State Coastal Nonpoint Source Programs (NOAA and EPA January 2001).

Electronic copies of the documents cited above as well as any ot her references cited in this document and the Federal Register notice announc ing this action will be available at the following website: http://coast.noaa.gov/czm/pollutioncontrol

.

SCOPE OF DECISION

This document explains NOAA and EPA’s fi nding regarding the additional management measures for forestry condition. This finding forms the basis for the federal agencies’ decision that the State has not submitted a fully approvable program. 2 The document also notes that the new development and OSDS management measures are no longer a basis for this decision. In addition, the document acknowledges the comments received regarding the adequacy of Oregon’s agriculture programs and policies for meeting the 6217(g) agriculture management

1 In a Settlement Agreement entered in 2010 to resolve a lawsuit brought by a nonprofit or ganization, Northwest Environmental Adv ocates v. Locke, et al., Case No. CV09-0017-PK (D. Or e), NOAA and EPA agreed to make a final decision on whether to approve or disapprove Oregon's Coastal Nonpoint Program by May 15, 2014, later extended to January 30, 2015.

2 CZARA provides for NOAA and EPA to withhold a portion of CZMA Section 306 and CWA S ection 319 grant funds when a disapproval

decision is made. NOAA and EPA may withhold funding as early as July 1, 2015.January 30, 2015

3 measures and conditions placed on Oregon’s Coasta l Nonpoint Program. However, at this time, the agencies have not made a decision on th e adequacy of the agricultural measures.

NOAA and EPA’s findings in this document are based on information the State has submitted in support of each condition, the fede ral agencies’ knowledge of co astal nonpoint source pollution management in Oregon, and the public comments received. Oregon may–and is encouraged to– continue to work on and improve its progr am to satisfy all coastal nonpoint program requirements. Should the State submit subs equent information upon which NOAA and EPA determine that the State has submitted a fully approvable program, the federal agencies will provide another opportunity for public comment. At that time, the public w ill be asked to provide

comment on whether the State has satisfied all conditions placed on its program in 1998 and met all CZARA requirements.

FINDING OF NOT HAVING SUBMITTED A FULLY APPROVABLE PROGRAM

NOAA and EPA have determined that the State of Oregon has not submitted a fully approvable program pursuant to Sect ion 6217(a) of CZARA.

I. UNMET CONDITION

A. ADDITIONAL MANAGEMENT MEASURES– FORESTRY

PURPOSE OF MANAGEMENT MEASURE: The purpose of this management measure is to identify additional management measures necess ary to achieve and maintain applicable water quality standards and protect designated uses for land uses where the 6217(g) management measures are already being implemented under existing nonpoint source programs but water quality is still impaired du e to identified nonpoint sources.

CONDITION FROM J ANUARY 1998 FINDINGS: Within two years, Oregon will identify and begin applying additional management meas ures where water quality impairments and degradation of beneficial uses at tributable to forestry exist de spite implementation of the 6217(g) measures (1998 Findings, section X).

FINDING: Oregon has not satisfied this condit ion. By not adopting and implementing additional management measures applicable to fore stry and forested lands that are necessary to achieve and maintain water quality standards and to protect designate d uses, Oregon has not submitted a fully approvable program under CZARA.

RATIONALE: Oregon proposed to address the additiona l management measures for forestry condition through a combination of regulatory an d voluntary programs. Those measures include best management practices or other control measures by rule estab lished by the Board of Forestry (Board). In addition, the Environm ental Quality Commission (EQC), the rulemaking body for the Oregon Department of Environmental Quality (ODEQ), can pe tition the Board if itJanuary 30, 2015

4 believes the Forest Practices Act (FPA) rules are not adequate for ach ieving water quality standards. While Oregon has made some progre ss towards meeting this condition, the State has not identified or applied addi tional management measures that fully address the program weaknesses the federal agencies noted in the January 13, 1998, Findings for Oregon’s Coastal Nonpoint Program. Specifically, the State ha s not implemented or revised management measures, backed by enforceable authorities, to (1) protect riparian areas for medium-sized and small fish-bearing (type “F”) st reams and non-fish-bearing (type “N ”) streams; (2) address the impacts of forest roads, particularly on so-cal led “legacy” roads; (3) pr otect high-risk landslide areas; and (4) ensure adequate stream buffers fo r the application of herbicides, particularly on non-fish-bearing streams.

Protection of Riparian Areas: Oregon relies on both regulatory and voluntary measures to provide riparian protections for medium-sized an d small fish-bearing streams (type “F” streams) and non-fish-bearing streams (type “N” streams). Generally, under the State’s current FPA rules, no tree harvesting is allowed on priv ate lands within 20 feet of fish-bearing streams, or mediumsized and large non-fish-bearing st reams. Also, all snags and dow ned wood that do not represent a safety or fire hazard must be retained w ithin riparian management areas around small and medium-sized fish-bearing streams (from the stream edge out to 50 and 70 feet, respectively). In addition, the FPA rules establish conifer basal area and density targets for some riparian management areas. For example, along medium -sized fish-bearing streams, there is a requirement to leave 30 trees (at least 8 inches diameter at breast hei ght [DBH]) per 1,000 feet. Oregon has no vegetation retention requirements for small non-fish-bearing streams in the Coast Range and Western Cascades.

In addition to regulatory requirements, the forest ry industry in the Stat e of Oregon has adopted voluntary measures to protect ripa rian areas for high aquatic potential streams (i.e., streams with low gradients and wide valleys where large wood y debris recruitment is most likely to be effective at enhancing salmon habitat). These vo luntary measures include large wood placement, retaining additional basal area within stream buf fers, large tree retention, and treating large and medium-sized non-fish-bearing streams the same as fish-bearing streams for buffer retentions. 3

Based on the results of a number of studies including those su mmarized below, NOAA and EPA previously determined and continue to find th at additional management measures (beyond those in FPA rules and the voluntary program) for fo restry riparian protec tion around medium-sized and small fish-bearing streams and non-fish-bearing streams are necessary to attain and maintain water quality standards and to pr otect designated uses. Therefore, Oregon must still adopt and implement management measures applicable to th e forestry land use and forested areas in order to protect small and medium-sized fish-bearing streams and non-fish-bearing streams from water quality impairments attributable to fore stry practices in riparian areas.

3 According to Oregon’s March 2014 coastal nonpoint program submittal, information on vol untary efforts was reported to the Oreg on Watershed Restoration Inventory. http://coastalmanagement.noaa.gov/nonpoint/oreg onDocket/StateofOregonCZA RAsubmittal3-20-14.pdf.January 30, 2015

5 A significant body of science, including 1) the Or egon Department of Forestry (ODF) Riparian and Stream Temperature Effectiveness Monitoring Project (RipStream) 4 ; 2) A Statewide Evaluation of Forest Practices Act Effe ctiveness in Protecting Water Quality (i.e., the Sufficiency Analysis ) 5 ; and 3) the Governor’s Independent Multidisciplinary Science Team (IMST) Report on the adequacy of the Oregon forest practices in recovering salmon and trout 6 , indicates that riparian protection around small and medium-s ized fish-bearing streams and non-fish-bearing streams in Oregon is not sufficient to achieve a nd maintain water quality and protect designated uses. The 2011 RipStream reports found that FPA ripa rian protections on pr ivate forest lands did

not ensure achievement of the Protection of Co ld Water (PCW) criterion under the Oregon water quality standard for temperature. 7,8 The PCW criterion prohibits human activities (e.g., timber harvest) from increasing stream temperatures by more than 0.3oC at locations critical to salmon, steelhead, or bull trout. The RipStream analysis de monstrated that the chance of a site managed using FPA rules exceeding the PCW criterion betw een a pre-harvest year and a postharvest year was 40 percent. 9,10

The RipStream study also demonstrated that stream temperature fluctuations increased, in part, with a reduction in shade, and that shade was best predicted by riparian basal area and tree height. The findings suggest that riparian protection measures that maintain higher shade (such as measures implemented on State forest land) ar e more likely to maintain stream temperatures

similar to control conditions. 11

The 2002 Sufficiency Analysis found that the Ore gon FPA’s prescribed riparian buffer widths for small and medium-sized fish-bearing stream s may be inadequate to prevent temperature impacts. That analysis concluded that 1) FPA standards for some medium-sized and small Type F streams in western Oregon may result in short-te rm temperature increases at the site level; and 2) FPA standards for some small Type N streams may result in short-term temperature increases at the site level that may be transferred dow nstream (this may impact water temperature and cold-water refugia) to fish-bearing streams. 12 In water bodies colder th an the numeric criteria, temperature increases of 0.3°C measured for al l sources combined at the point of maximum

4 Three peer-reviewed articles present th e results of the RipStream analysis: Dent, L., D. Vick, K. Abraham, S. Shoenholtz, and S. Johnson. 20 08. Summer temperature patterns in headwater streams of the Or egon Coast Range. Journal of the American Water Resources Association 44:803–813. Groom, J.D., L. Dent, and L.J. Madsen. 2011a. Stream temperature change detection for state and private forests in the Oregon C oast Range. Water Resources Research 47 W01501. doi:10.1029/2009WR009061. Groom, J.D., L. Dent, and L.J. Madsen. 2011b. Response of western Oregon stream temperatures to contemporary forest management. Forest Ecology and Management . doi:10.1016/j.foreco.2011.07.012.

5 Oregon Department of Forestry and Oregon Department of Environmental Quality. 2002. Sufficiency Analysis: A Statewide Evaluation of Forest Practices Act Effectiveness in Protecting Water Quality . Oregon Department of Forestry and Oregon Department of Environmental Quality.

6 Independent Multidiscip linary Science Team. 1999. Recovery of Wild Salmonids in Western Or egon Forests: Oregon Forest Practices Act Rules and the Measures in the Oregon Plan for Salmon and Watersheds . Technical Report 1999-1 to the Oregon Plan for Salmon and Watersheds, Governor’s Natural Resources Office, Salem, OR.

7 Groom et al., 2011a.

8 Daugherty, P., and J.D. Groom. 2011. Update on Private Forests Riparian Function and Stream Temperature (RipStream) Project . Staff Report; November 3, 2011.

9 Ibid. 2.

10 Groom et al., 2011a.

11 Ibid.2. 3.

12 Oregon Department of Forestry and Oregon Depa rtment of Environmental Quality, 2002, pp. 44-45.January 30, 2015

6 impact where salmon, steelhead, or bull trout ar e present is a violati on of the State’s PCW

criterion.

As early as 1999, the IMST study found that the FPA rule requirements related to riparian buffers and large woody debris needed to be improved. Based on its scientific analysis, the IMST team concluded, “...the current site-specific appr oach of regulation and voluntary action is not sufficient to accomplish the r ecovery of wild salmonids.” 13 The IMST team made the following recommendations: 1) Because nongame fish and other aquatic organisms play a role in a functioning stream system, and the distribution of salmonids will change over time, non-fishbearing streams should be treated no differently than fish-bearing streams when determining the buffer width protections; 14 2) there should be an increase in the basal area and requirements for riparian management areas for both small and medi um-sized streams, regardless of the presence of fish; and 3) there should be an increase in th e number of trees within the riparian management

area for both fish- and non-fish-beari ng small and medium-sized streams. 15

In 2013, the EPA, together with the U.S. Geol ogical Survey (USGS) and the Bureau of Land Management, reevaluated and summ arized pertinent scientific th eory and empirical studies to address the effects of riparian management strategies on stream function, with a focus on
temperature. 16 With regard to no-cut buffe rs adjacent to clearcut ha rvest units, the paper noted

that substantial adverse effects from reduced av ailable shade have been observed with no-cut buffers ranging from 20 to 30 meters, 17 and that minimal adverse effects on stream shading and temperature have been observed in studies th at examined no-cut buffer widths of 46 meters. 18

For no-cut buffer widths of 46–69 meters, the eff ects of tree removal on shade and temperature

were either not detected or were minimal. 19 The paper also documented that, with no-cut buffer widths of less than 20 meters, pronounced reduc tions in shade and increases in temperature occurred, as compared to wider buffers. The mo st dramatic effects were observed at the narrowest buffer widths (less than or equal to 10 meters). 20 As already noted, existing FPA

standards for small and medium-sized fish -bearing streams require only 20-foot (or approximately 7-meter) no-cut buffers within a ri parian management zone of approximately 17– 23 meters. No vegetation retenti on is required on small non-fish -bearing streams in the Coast Range and Western Cascades.

Oregon also has been investing in three paired watershe d studies that are de signed to analyze the effects of timber harvesting on a watershed and reach scale. 21 Several commenters have cited the paired watershed study as evidence that the curr ent FPA practices for riparian protection are effective at achieving and maintaining water qua lity standards and prot ecting designated uses. Unpublished preliminary data from the Hinkle Creek study indicate that changes in stream

13 Independent Multidisciplin ary Science Team, 1999, 2.

14 Ibid. 21 and 43.

15 Ibid. 44-45.

16 Leinenbach, P., G. McFadden, and C. Torgersen. 2013. Effects of Riparian Management St rategies on Stream Temperature . Prepared for the Interagency Coordinating Subgroup (ICS), 22 pp.

17 Brosofske et al., 1997; Kiffney et al., 2003; Groo m et al., 2011b as cited in Leinenbach et al. 2013.

18 Science Team Review, 2008; Groom et al., 2011a as cited in Leinenbach et al. 2013.

19 Anderson et al., 2007; Science Team Revi ew, 2008; Groom et al., 2011a; Groom et al., 2011b as cited in Leinenbach et al. 2013.

20 Jackson et al., 2001; Curry et al., 2002; Kiffney et al., 2003; Gomi et al., 2006; Anderson et al., 2007 as cited in Leinenbac h et al. 2013.

21 Watershed Research Cooperative. Accessed 2014. Watershed Studies. Available online at: http://watershedsresearch.o rg/watershed-studies/.January 30, 2015

7 temperature after timber harvest along non-fish-b earing streams were variable. In addition, there was no measureable downstream effect on temperatures. 22 The variation in stream temperature and overall net observed temperature decrease, however, could be at tributable to increased slash debris along the stream after harves t, as well as a likely increase in stream flow post-harvest that could reduce any increase in te mperatures and contribute to lower mean stream temperatures. 23
Because a variety of factors confound the draf t conclusions from the Hinkle Creek study, NOAA and EPA do not rely on that analysis. In its ev aluation of the study results, DEQ concluded that temperature data from the Hinkle Creek and Al sea River studies show that for fish-bearing streams, temperature increases downstream from the harvest sites were very similar to the increases found in the RipStream study. 24 The 2011 RipStream reports found that FPA riparian protections on private forest la nds did not ensure achievement of the PCW criterion under the Oregon water quality standard for temperature. 25,26

NOAA and EPA acknowledge that Ore gon is working to address some of the inadequate riparian protection measures in the FPA. The Board has th e authority to regulate forest practices through administrative rule making and require changes to the FPA rules to protect small and mediumsized fish-bearing streams. Recognizing the need to better protect sma ll and medium Type F streams, the Board directed ODF to undertake a rule analysis pro cess that could lead to revised riparian protection rules. At its September 2014 meeting, the Board voted unanimously in favor of continuing to analyze what changes might be needed in the Oregon Fo rest Practice Rules to provide greater buffer protecti on for medium-sized and small fish-bearing streams on private forest lands. NOAA and EPA encourage the State to move forward with this rule-making process expeditiously.

The Board and ODF have not proposed increased protection for riparian areas around small nonfish-bearing streams. As previously discusse d in the IMST study, non-fish-bearing streams should be treated no differently than fish-bear ing streams when determining the appropriate buffer width required to protect designated uses. 27 Oregon should revise and implement additional management measures for riparian ar eas adjacent to small non-fish-bearing streams necessary to achieve and maintain water qualit y standards and protect designated uses. These measures may be regulatory or voluntary, however vol untary measures must be monitored for effectiveness and backed up by enforcement au thorities should voluntary measures not be implemented or effective.

Impact of Forestry Roads: In the 1998 approval conditions, NOAA and EPA identified specific concerns with Oregon’s FPA rule s concerning road density and ma intenance, particularly with respect to so-called “legacy” roads. The fede ral agencies noted that “legacy” roads—roads

22 Watersheds Research Cooperative. 2008. Hinkle Creek Paired Watershed Study . Available online at: http://oregonforests.org/sites/default/ files/publications/pdf/WRC_Hinkle.pdf.

23 Kibler, K.M. 2007. The Influence of Contemporary Forest Harvesting on Summer St ream Temperatures in Headwater Streams of Hinkle Creek, Oregon . Master’s thesis, Oregon State University.

24 Seeds, J., R. Mitchie, D. Jepsen, and G. Foster. 2014. Responses to Questions/Concerns Raised by Oregon Forestry Industries Council Regarding the Protecting Cold Water Criterion of Oregon’s Temperature Water Quality Standard . Oregon Department of Environmental Quality and Oregon Department of Fish and Wildlife Memo. June 19, 2004.

25 Groom et al., 2011a.

26 Daugherty and Groom, 2011.

27 Independent Multidiscip linary Science Team, 1999.January 30, 2015

8 constructed and used prior to adoption of the FPA in 1971 and not used or maintained since— were not required to be treated and stabilized be fore closure. In some locations, that practice has resulted in significantly altered surface drainage, diversion of wa ter from natural channels, and serious erosion or landslides, c onditions that threaten to impa ir coastal waters and protect designated uses.

Legacy roads threaten water quality standards and designated uses due to their location and construction. Historic settlement patterns and relative ease-of-construction led early developers to preferentially locate roads in valley bottoms near streams. Those roads often paralleled low gradient streams (historically the most produc tive coho habitat) and crossed many tributaries. 28
Prior to modern best management practices, mi d-slope roads would often be connected to the valley bottom roads to access harvest units. 29 The poorly designed forest roads increase sediment supplied to streams by altering hillslope hydrology, surface runoff, and sediment flux. 30 They represent a chronic source of low-level sediment over time. 31 The ecological consequences of sediment continuously supplied from roads may be equally or even more detrimental over time than periodic sediment pulses. 32 Furthermore, legacy roads sometimes serve as initiation points for landslides many years, or ev en decades, after construction. 33 For example, one study found that forestry roads in Oregon built before 1984 ha ve higher landslide rates than those built later. 34

Oregon’s IMST found that:

“‘Old roads and railroad grades’ on forestlands, sometimes called legacy roads, are not covered by the OFPA rules unless they are react ivated for a current forestry operation or purposes. IMST believes the lack of a mechan ism to address the risks presented by such roads is a serious impediment to achieving the goals of the Oregon Pla n. A process that will

result in the stabilization of such roads is need ed, with highest priority attention to roads in core areas, but with attention to such roads a nd railroad grades at all locations on forestlands

over time.” 35

In 1996, the National Marine Fisheries Service (NMFS) provided a scientific analysis of the draft

Coastal Salmon Restoration Initia tive (CSRI) report—which later evolved into the Oregon Plan

28 Nicholas J., B. McIntosh, and E. Bowles. 2005. Oregon Coastal Coho Assessment. Part 1: Synthesis of the Coastal Coho ESU Assessment

. Oregon Watershed Enhancement Board and Oregon Depa rtment of Fish and Wildlife, Salem, OR.

29 Wemple, B.C., F.J. Swanson, and J.A. Jones. 2001. Forest ro ads and geomorphic process inter actions, Cascade range, Oregon. Earth Surface Processes and Landforms 26:191-204.

30 Reid, L. M., and T. Dunne. 1984. Sedime nt production from forest road surfaces. Water Resources Research 20(11):1753-1761; Luce, C.H., and T.A. Black. 1999. Sediment production from forest roads in western Oregon. Water Resources Research 35(8):2561-2570; Wemple, B.C., and J.A. Jones. 2003. Runoff production on fo rest roads in a steep, mountain catchment. Water Resources Research 39, doi:10.1029/2002WR001744; Skaugset , A., and M.M. Allen. 1998. Forestry Road Sedimentation Drainage Monitoring Project for Private and State Lands in Western Oregon . Prepared for the Oregon Department of Forestry by the Forestry Engineering Department, Oregon State University; Robison, E.G., K. Mills, J. Paul, L. Dent, and A Skaugset. 1999. Storm Impacts and Landslides of 1996: Final Report . Forest Practices Technical Report, Vol. 4. Or egon Department of Forestry, Corvallis.

31 MacDonald, L.H., and D.B.R. Coe. 2008. Road sedime nt production and delivery: processes and management. Proceedings of the First World Landslide Forum, International Programme on Landslide s and International Strategy for Disaster Reduction. United Nations University, Tokyo, Japan. pp. 381–384.

32 Detenbeck, N.E., P.W. Devore, G.J. Niemi, and A. Lima. 1992. Rec overy of temperate stream fish communities from disturbance: a review of case studies and synthesis of theory. Environ. Manage . 16:33-53.

33 Oregon Department of Forestry and Oregon Department of Environmental Quality, 2002.

34 Ibid. p. 33, Sessions, 1987.

35 Independent Multidisciplinar y Science Team, 1999, pp. 47.January 30, 2015

9 for Salmon and Watersheds. NMFS indicated that th e forest practice rules have no well-defined process to identify probl ems with older logging roads and ra ilroad grades constructed prior to

1994. 36

In addition to water quality impacts, sedimentatio n and erosion from forest ry roads have adverse impacts on salmon. Salmonid spawning is one of Oregon’s designated uses. Logging roads are a

source of fine sediments that enter spawning gravel and can lo wer the success of spawning and

recruitment for coho salmon. 37 NMFS’s scientific analysis for their Endangered Species Act (ESA) section 7 listing for Oregon coast coho salmon also continues to rec ognize forestry roads, including legacy roads, as a source of sedi ment and a threat to Oregon coastal coho salmon. NMFS explained that “existing a nd legacy [forestry] roads can c ontribute to continued stream degradation over time through restriction of debr is flows, sedimentation, restriction of fish passage, and loss of riparian function.” 38

Since 1998, the Board has made several improvement s to general road maintenance measures to improve water quality. Changes made in 2002 and 2003 incl uded (1) establishment of a Avoiding

Roads in Critical Locations Policy to avoid building roads in critical locations (e.g., high-hazards landslide areas, steep slopes, or within 50 feet of water bodies); (2) creation of additional rules to address wet-weather hauling (OAR 629-625-0700) ; and (3) revision of an existing road drainage rule to reduce sediment delivery (OAR 629-625-0330). Those improvements should reduce sedimentation on roadways in forested areas in order to achieve water quality standards and to protect designated uses. The ne w drainage requirements, however, become operative only when

new road construction or recons truction of existing roads occu rs. The rule changes and new policies do not address legacy road s (i.e., roads that do not meet current State requirements with respect to siting, construction, maintenance, and ro ad drainage) or impairments associated with a large portion of the exis ting road network where construction or reconstruction is not proposed.

Oregon proposed to address those legacy road issues and gaps in its FPA rules through voluntary efforts, including restoration and monitoring activities carried out through the voluntary Oregon Plan. For example, in its March 2014 subm ittal in response to NOAA and EPA’s proposed determination, the State described ODF’s volunt ary Road Hazard and Identification and Risk Reduction Project through which private and State fo restland owners survey their road networks to identify roads that pose risks to salmonid habitat and prioritize roads for remediation. While Oregon reports that thousa nds of road miles have been inspected and repaired across the State since the inception of the program in 1997, Or egon does not have a monitoring or tracking program that can report on the significance of thes e efforts relative to the universe of the road network, nor report on whether these projects addr essed active forest roads and roads retired according to current FPA practices, and which pr ojects addressed problems associated with older, legacy roads. As noted in the Oregon Coastal Coho Assessment, 39 old roads make up the

36 NOAA National Marine Fisheries Service. 1996. Analysis of the Oregon Department of Fore stry’s (ODF) Most Recent Submission for the State of Oregon’s Coastal Salmon Restoration Initiative . September 10, 1996 memo from Rowan Bake r to Steve Morris and Elizabeth Garr.

37 Cederholm, C.J., L.M. Reid, and E.O. Salo. 1980. Cumulative Effects of Logging Road Sediment on Salmonid Populations in the Clearwater River, Jefferson County, Washington . Contribution No. 543. College of Fisheries, University of Washington, Seattle, WA.

38 NOAA National Marine Fisheries Service. 2012. Scientific Conclusions of the Status Review for Oregon Coast Coho Salmon (Oncorhynchus kisutch) . NOAA Technical Memorandum NMFS-NWFSC-118, June 2012. Pg. 78.

39 Nicholas et al., 2005.January 30, 2015

10 majority of forest roads and the road inventory data on private la nd is often not made available. As a result, it is not possible to determine the extent to which voluntary efforts have addressed the sedimentation problems and landslide ri sk posed by the leg acy road network.

The federal agencies are also concerned about the long-term implementation of the voluntary program. As noted in the State’s March 2014 submission, “voluntary reporting of OPSW [Oregon Plan for Salmon and Watersheds] voluntary measures has diminished in the past years,

however it is reasonable to assume that volunta ry measure implementation has not.” The State does not provide the basis for this statement. Without methods for track ing and evaluating the effectiveness of those voluntary programs, the federal agencies cannot approve the voluntary approach for addressing the forestry management measures as they pertain to old or legacy

roads.

Oregon also noted that it has en tered into a cooperative agreement with the U.S. Forest Service to update the State’s geographic information system (GIS) data layer for forest roads. The data layer will help the State conduct a rapid road survey to evaluate and prioritize road risks to soil and water resources. Oregon noted it hoped to begin the survey in 2014. NOAA and EPA encourage the State to move forw ard with the road survey. Howeve r, the federal agencies are not aware if the GIS data layer and the survey will in clude (or even identify) legacy roads or whether

the State will use the data to di rect future management actions.

In addition, the State also disc ussed it was undertaking a thir d-party audit in 2014 to assess compliance with the FPA rules governing forest road construction and maintenance among other issues. While NOAA and EPA encourage the State to continue to conduct that and other audits to assess compliance with FPA rules, as noted earlie r, legacy roads are not subject to FPA rules. Since the audit will assess compliance with the FPA rules, NOAA and EPA conclude that issues resulting from legacy roads as well as issues resulting from general road maintenance where

construction or reconstruction is not occurring will not be addresse d in this audit since the FPA rules do not apply in these situations.

In summary, NOAA and EPA recognize that lega cy roads are being addressed through voluntary measures and that they have been the target of significant landowner inve stment. As noted in the Oregon Coastal Coho Assessment, 40 however, old roads make up the majority of forest roads, and road inventory data on private land is not widely available. As a result, NOAA and EPA cannot determine, and the State has not made in formation-based representations specifying, the extent to which voluntary efforts have addres sed the sedimentation pr oblems and landslide risk posed by the legacy road network.

In addition, as the federal agencies’ 1998 Final Administration Changes Memo states, in order for states to rely on voluntary programs to meet co astal nonpoint program re quirements, a state must, among other things (1) describe the volun tary program, including the methods for tracking and evaluating those programs the State will use to encourage implementation of the management measures; and (2) pr ovide a legal opinion from its Attorney General asserting the

40 Ibid.January 30, 2015

11 State has adequate backup enforcement authority for the voluntary measures and commit to exercising the backup authority when necessary . While the State has provided the federal agencies with a legal opinion detailing the suit ability of its backup au thorities, it has not demonstrated (either in writing or through past practice) a commi tment to exercise its backup authority to require implementation of the additiona l management measures for forestry roads, as needed, nor identified a prior instance wh en it may have exercised that authority.

Additionally, the State has not described speci fically how voluntary efforts have and will continue to address legacy road issues within the coastal non point management area or how it will continue to monitor and track the implementation of those measures to address forestry road issues, including legacy roads.

The suite of voluntary programs Oregon has describe d could satisfy the fore stry roads element of this management measure. However, as discussed above, additional information is needed at this time. The federal agencies encourage the Stat e to provide a commitment to use its backup authority to ensure implementation of forestry road additional management measures. The agencies also encourage the State to move forwar d with establishi ng a road survey or inventory program that considers both active, inactive, and legacy roads, including a mechanism for tracking and monitoring implementation of voluntar y measures to carry out identified priority forest road improvements. To support an approv able coastal nonpoint program, the inventory could establish, among other things, a timeline fo r addressing priority road issues, including retiring or restoring forest roads that impair water qualit y, and a reporting and tracking component to assess progress for remediating id entified forest road problems. Establishing a roads inventory with appropriate reporting metr ics would provide valuable information on State and private landowner accomplishments to improve and repair roads and identify where further efforts are needed. Such an approach could help verify whether the combination of current rules and the Oregon Plan’s voluntary measures are ef fective in managing forest roads to protect

streams within a reasonable timeframe.

Protection of Landslide-Prone Areas: In the 1998 findings, the federal agencies identified areas where existing practices under the FPA and FPA ru les should be strengthened to achieve and maintain water quality standa rds and protect designated uses; among them was the need to provide better protection of ar eas at high risk for landslides.

Oregon proposed to address the landslide elemen t of the additional management measures for forestry condition through a mix of regulator y and voluntary approaches. Since January 13, 1998, Oregon has amended the Oregon FPA rules to re quire the identificati on of landslide hazard areas in timber harvesting plans and road constr uction and placed certain restrictions on harvest and road activities within the designated hi gh-risk areas for public safety (OAR 629-623-0000 through 629-623-0800). Under these amendments, however, shallow, rapidly moving landslide hazards directly related to forest practices are addressed only as they relate to risks for loss of life and property, not for potential adverse impact s on water quality or designated uses. Timber harvest and the construction of forest roads, when alternatives are not ava ilable, continue without controls on high-risk landslide hazard areas as lo ng as such harvest and road construction are not deemed a public safety risk.January 30, 2015

12 In addition to the regulatory programs, Oregon stated that it employs a voluntary measure under the Oregon Plan that gives landowners credit for leaving standing liv e trees along landslideprone areas as a source of large wood. The larg e wood, which may eventually be deposited into fish-bearing stream channels, contributes to stre am complexity, a key limiting factor for coastal coho salmon recovery. While this is a good manageme nt practice, the measure is not designed to protect high-risk erosion areas bu t rather to ensure large wood is available to provide additional stream complexity when a landslide occurs. NOAA and EPA do not consid er this voluntary action a sufficient management meas ure to reduce high-risk landslide s that adversely affect water quality standards or designated uses.

Also, Oregon’s voluntary program is incomplete . To rely on voluntary approaches to meet CZARA requirements, a state not only needs to desc ribe the voluntary approach but also needs to describe how it will monitor and track implementation of that approach, provide a legal opinion asserting the state has adequate backup authority to ensure im plementation of the management measure, and provide a commitment to use that backup authority, when needed.

As noted in the January 13, 1998, findings, logging on unstable steep terrain can increase landslide rates, which contributes to water quality impairments. A number of studies continue to show significant in creases in landslide rates after clearcuts compared to unmanaged

forests in the Pacific Northwest. For example, one study found that in three out of four areas studied in very steep terrain, land slide densities and erosion volume s were greater in stands that were clearcut during th e previous nine years. 41 The study observed that landslide rates on Mettman Ridge, within the Oregon Coast Range, increased three to nine times the background rate after clearcut harvest. Another study perf ormed a regional analysis from the Mettman Ridge study and found that forest clearing dramatically accelerates shallow lands lides in steep terrain typical of the Pacific Northwest. 42 In another study in southw estern Washington, landslide densities in recently harvested site s were roughly two to three times the landslide densities in old stands when exposed to rainfall intens ities greater than the 100-year event

. 43 That research found that very few landslides occurred when rainfall was less than or equal to a 100-year rainfall

event.

Other research has examined the role of root cohesion on landslid e susceptibility in forested landscapes. “Root cohesion” is a measure of the lateral reinforcing strength the root system provides. The higher the root cohesion, the better the root system can stabilize the soil, reducing

the risk of landslides. 44 One study noted that median lateral root cohesion is less for industrial forests with significant understo ry and deciduous vegetation (6.8–23.2 kiloPascal (kPa), a unit of pressure) compared to natural forests domin ated by conifers (25.6–94.3 kPa). Additionally, in

41 Robison et al., 1999.

42 Montgomery, D. R., K. M. Schmidt, H. M. Greenberg, and W. E. Dietrich. 2000. Forest clearing and regional landsliding. Geology 28: 311-

314.

43 Turner, T.R., S.D. Duke, B.R. Fransen, M.L. Reiter, A.J. Kroll, J.W. Ward, J.L. Bach, T.E. Justice, and R.E. Bilby. 2010. Land slide densities associated with rainfall, stand age, and topography on forested landscapes, southwestern Washington, USA. Forest Ecology and Management

259:2233–2247.

44 Schmidt, K.M., J.J. Roering, J.D. Stock, W.E. Dietrich, D.R. Montgomery, and T. Schaub. 2001. The variability of root cohesion as an influence on shallow landslide suscep tibility in the Oregon Coast Range. Canada Geotech. J 38; 997-1024.January 30, 2015

13 clearcut areas, the researchers f ound that lateral root c ohesion is uniformly less than or equal to 10 kPa, making those areas much mo re susceptible to landslides.

Sakals and Sidle modeled the effect of diffe rent harvest methodologies on root cohesion over

time. 45 They found that, of the methodologies examined (i.e., clearcutting, single-tree selection cutting, and strip cutting), clearc uts produced the greatest decline in root cohesion. Further, they found that root cohesion may c ontinue to decline for 30 years postharvest. That decline is attributed to the decay of the root systems of the harvested trees and the fact that young root systems have smaller root volumes and less radial rooting extent. They co ncluded that clearcuts on hazardous slopes could increase the number of la ndslides as well as the probability of larger landslides. They also stated that a management approach requiring the re tention of conifers on high-risk slopes would incr ease root cohesion and reduce the risk of landslides.

The peer-reviewed science demonstr ates that timber harvesting in landslide-prone areas degrades water quality and impairs designated uses in Pa cific Northwest streams by delivering excessive sediment load that can block fish pass age and smother or scour spawning grounds . Whittaker and McShane explained:

“In the Pacific Northwest, ... [l]andslides a lter aquatic habitats by elevating sediment delivery, creating log jams, and causing debris flows that scour streams and stream valleys down to bedrock (Rood 1984; Cederhol m and Reid 1987; Hogan et. al. 1998). The short-term and long-term impacts of higher rates of landslides on fish include habitat loss, reduced access to spawning and rearing s ites, loss of food resources, and direct mortality (Cederholm and Lestelle 1974; Cede rholm and Salo 1979; Reeves et. al. 1995). The restoration of geomorphic processes to na tural disturbance regimes is crucial to the recovery of endangered salmonids ( Oncorhynchus spp.) and other aquatic species in the Pacific Northwest as these species evolved under conditions with much lower sediment delivery and landslide frequency (Ree ves et. al. 1995; Montgomery 2004).” 46

In 2013, the Cooperative Monitoring Evaluation and Research committee (CMER) of the Washington State Department of Natural Resour ces published a study that explored landslide response to a large 2007 storm in southwestern Washington. 47 Within the 91-square-mile study

area, a total of 1,147 landslides were found within harvest units th at delivered sediment load to public resources (mostly streams). The majority ( 82 percent) occurred on hillslopes and the rest initiated from roads. In examining the landslides , the study found that unstable hillslopes logged with no buffer had a significantly higher (65 perc ent) landslide density than did mature stands. Unstable slopes logged with no buf fer also delivered 347 percent more sediment than slopes with unlogged mature stands. The aut hors conclude that buffers on unstable slopes likely reduce landslide density and sediment volume. That conclusion has important implications for water

45 Sakals, M.E., and R.C. Sidle. 2004. A spatial and temporal model of root cohesion in forest soils. Canadian Journal of Forest Research 34(4):

950-958.

46 Whittaker, K.A., and D. McShane. 2012. Comparison of slope inst ability screening tools following a large storm event and appli cation to forest management policy. Geomorphology 145-146:115-122.

47 Stewart, G., J. Dieu, J. Phillips, M. O’Connor, and C. Veldhuisen. 2013. The Mass Wasting Effectiveness Monitoring Project: An examination of the landslide response to the December 2007 storm in Southwestern Washington. Cooperative Monitoring, Evaluation and Research Report CMER 08- 802; Washington Department of Natural Resources, Olympia, WA.January 30, 2015

14 quality and designated benefici al uses. Sediments delivered from landslides clog and damage fish gills, suffocate fish eggs, smother aquatic ins ect larvae, and fill in spaces in streambed gravel where fish lay eggs. Sediment can also carry ot her pollutants into water bodies, creating issues for domestic water supply and public water providers. 48

Given the evidence that clear-cutting increases th e rate of landslides and that landslides adversely affect water quality and designated be neficial uses, adoption and implementation of

additional management measures applicable to forest ry in landslide-prone ar eas is necessary to achieve and maintain water quality standards and protect designated uses. To develop the required additional management measures, the St ate could pursue several actions that would collectively address this issue, su ch as some of the following:

 Adopt harvest and road construction restricti ons that apply to a ll high-risk landslideprone areas with moderate-to-high potential to impact water quality and designated uses.

 Develop a scientifically rigorous process for identifying high-ris k areas and unstable slopes based on field review by trained staff. The process could include the use of slope instability screening t ools to identify high-risk landslide areas that take into account sitespecific factors such as slope, geology and geography, and planned land management activities (e.g., roads development).

 Develop more robust voluntary programs to en courage and incentivize the use of forestry best management practices to protect high-risk landslide areas that have the potential to impact water quality and designated uses, such as employing no-harvest restrictions around high-risk areas and ensuring that road s are designed, constructed, and maintained

in a manner that minimizes the risk of tr iggering slope failures. Widely available maps of high-risk landslide areas could improve water quality by informing foresters during harvest planning.

 Institute a monitoring program to track co mpliance with the FPA rules and voluntary guidance for high-risk landslide-prone areas a nd the effectiveness of the practices in reducing slope failures.

 Establish an ongoing monitoring program that assesses the underlying causes and water quality impacts of landslides shortly af ter they occur and generates specific recommendations for future management. Integrate into the Total Maximum Daily Load ( TMDL) development process procedures to id entify high-risk landslide-prone areas and specific best management practices to protect thos e areas. For example, i n the Mid-Coast Basin, ODEQ is currently developing a sedime nt TMDL to address water quality limited

48 Whittaker and McShane, 2012; Cederholm et al., 1980; Jensen, D.W. , E.A. Steel, A.H. Fullerton, a nd G.R. Pess. 2009. Impact of fine sediment on egg-to-fry survival of pacific salmon: A meta-analysis of published studies. Reviews in Fisheries Science 17(3):348-359; EPA. 2003. Developing Water Quality Criteria for Suspended and Be dded Sediments (SABS): Potential Approaches (Draft) . U.S. Environmental Protection Agency; Bauer, S.B., and S.C. Ralph. 1999. Aquatic Habitat Indicators and thei r Application to Water Quality Ob jectives within the Clean Water Act, Section 3 . U.S. Environmental Protection Agency, Region 10. EPA 910-R-99-014; Or egon Department of Environmental Quality. No Date. Water Quality Standards: Turbidity . Available at: http://www.deq.state.or.us/ wq/standards/turbidity.htm

.January 30, 2015

15 waters for bio-criteria, turbidity, and se diment. To support the development of the TMDL, the Oregon Department of Geology a nd Mineral Resources completed landslide inventory maps for two watersheds in the Mid-Coast Basin, finding hundreds of previously unidentified landslides. 49 As part of the TMDL, ODEQ will complete a source assessment of the landslides in relationship to the water quality impairments. NOAA and EPA encourage the State to complete the TMDL and include specific practices that landowners are required to follow in orde r to reduce pollutants causing impairments

addressed in the TMDL.

If Oregon plans to rely on voluntar y efforts, the State will need to (1) describe the full suite of voluntary practices it plans to use to address th is management measure; (2) describe how it will ensure the use of these voluntary practices a nd track their implementation; and (3) provide a legal opinion that the State has backup authority to ensure implementa tion of the management

measure and a commitment to use th e backup authority, when needed.

Ensure Adequate Stream Buffers for Application of Herbicides, Particularly on Non-fish-bearing (Type N) Streams: In the January 1998 findings, the federal agencies noted that Oregon had adopted forest practices rules that require aerial spray buffers for most pesticide applications (OAR 629-620-0400(7)(b)). The rule changes, howe ver, did not include spray buffers for the aerial application of herbicid es along non-fish-bearing streams commonly found in headwaters. NOAA and EPA determined that additional management measures to protect non-fish-bearing streams during the aerial applica tion of herbicides on forestlands were necessary to achieve and maintain water quality standards and to protect designated uses.

Since 1998, Oregon has provided to the federal agencies several documents describing the programs it uses to manage pesticides, most r ecently in March 2014. In addition to the FPA rule buffers noted above, the State also addresses pe sticide issues through the Chemical and Other Petroleum Product Rules (OAR 629-620-0000 thr ough 800) Pesticide Control Law (ORS 634); and best management practices set by the Oregon Department of Agriculture (ODA) and federal pesticide label requirements under the Federal Ins ecticide, Fungicide, and Rodenticide Act (FIFRA); as well as the State’s Wate r Quality Pesticide Management Plan 50 and Pesticide Stewardship Partners hip (PSP) program. 51 In its March 2014 submittal, Oregon noted that it specifically relies on best management prac tices set by ODA and EPA under FIFRA for the protection of small non-fish-bearing streams.

The aerial application of herbicides such as gl yphosate, 2,4-D, atrazine, and others is a common practice in the forestry industry in Oregon. 52,53 Herbicides are sprayed to control weeds on recently harvested parcels to prevent competitio n with newly planted tree saplings. In 2008,

49 Burns, W. J., S. Duplantis, C. Jones, and J. English. 2012. LIDAR Data and Landslide Inventory Maps of the North Fork Siuslaw River and Big Elk Creek Watersheds, Lane, Lincoln and Benton Counties, Oregon . Open-File Report O-12-07, Oregon De partment of Geology and Mineral

Industries.

50 State of Oregon (ODA, ODEQ, ODF, and OHA). 2011. Pesticide Management Plan for Water Quality Protection

. 51 ODEQ. 2012. Fact Sheet: Pesticide Stewardship Partnerships in Oregon . DEQ 12-WQ-021. Updated March 2012.

52 Wagner, R. G., M. Newton, E. C. Cole , J. H. Miller, and B. D. Shiver. 2009

. The role of herbicides for e nhancing forest productivity and conserving land for biodiversity in North America. Wildlife Society Bulletin 32(4):1028-1041.

53 Norris, L.A., H.W. Lorz, and S.V. Gregory. 1991. Forest chemic als. Influences of forest and rangeland management on salmonid f ishes and

their habitats. American Fisheries Society Special Publication 19:207-296.January 30, 2015

16 more than 800,000 pounds of pesticides, the major ity of which were herbicides (at least 700,000 pounds) were used for forestry purposes in Oregon. 54 Research has shown that herbicides may adversely impact water quality and desi gnated uses to protect aquatic life. 55 Herbicides applied through the air commonly reach ne arby streams through aerial drift 56 and runoff from the

land. 57,58

Oregon does not require spray buffers for aerial application of herbicides on small non-fishbearing streams. Applicators can spray directly up to and over non-fish-bearing streams. In addition, there are no requirements for ripari an harvest buffers along small non-fish-bearing streams. For example, in the Triangle Lake ar ea in the Oregon coastal nonpoint management area, there are areas where aerial application of herbicides occu rred in areas where timber was harvested to the stream edge. 59 Riparian harvest buffers could serve as defacto spray buffers since they would prevent timber harvesting up to the stream and, therefore, would not require herbicide spraying over the nonharves ted area to control weeds. Ripa rian buffers can also help filter any herbicide pollu tants from runoff before it reaches the streams. 60,61

Given that non-fish-bearing streams comprise a bout 70 percent of the total stream length and feed fish-bearing streams, the wide use of herbic ides by the forestry industry in coastal Oregon and the lack of any spray or riparian buffers that would help protec t non-fish-bearing streams from adverse impacts due to the aerial applicatio n of herbicides threat en designated uses in Oregon coastal waters. Small, headwater non-fish- bearing streams play an important role in delivering cold, clean water to downstream fish-bearing streams. 62 Therefore, it is reasonably foreseeable that Oregon coastal wa ters are threatened by herbicid e pollutants and that additional management measures that will provide greate r protection of non-fish-bearing streams during the aerial application of herbicides are warranted to achieve water quality standards and protect designated uses (CZARA sec. 6127(b)(1)(B), 16 U.S.C. 1455b).

54 Oregon Department of Agriculture. 2009. Pesticide Use Reporting System. 2008 Annual Report . Available online at: http://www.oregon.gov/ODA/shared/Documents/P ublications/PesticidesPARC/Pesticideuse reportingsystemAnnua lreport2008.pdf

55 Relyea, R.A. 2005. The impact of insec ticides and herbicides on the biodiversity and productivity of aquatic communities. Ecological Applications 15:618–627; Relyea, R., and J. Hoverman. 2006. Assessing the ecology in ecotoxicology: a review and synthesis in freshwater
systems. Ecology Letters 9:1157–1171; Battaglin, W.A., K.C. Rice, M.J. Focazio, S. Salmons, and R.X. Barr y. 2009. The occurrence of glyphosate, atrazine, and other pesticides in vernal pools and adjacent streams in Washington, DC, Maryland, Iowa, and Wyoming, 2005-2006. Environmental Monitoring and Assessment 155(1-4): 281-307; Graymore, M., F. Stagnitti, and G. Allinson. 2001. Impacts of atrazine in aquatic
ecosystems. Environment International 26(7-8):483-495.

56 Majewski, M.S., and P.D. Capel. 1996. Pesticides in the Atmosphere: Distribution, Trends, and Governing Factors . U.S. Geological Survey. Open File Report 94-506. National Water-Qualit y Assessment Program; Van Den Berg, F., R. Kubiak, W.G. Benjey, M.S. Majewski, S. R. Yates, G.L. Reeves, J.H. Smelt, and A.M.A. Van Der Linden. 1999. Emissions of Pesticides into the Air. Fate of Pesticides in the Atmosphere: Implications for Envir onmental Risk Assessment . pp. 195-218; Pimentel, D., and L. Levitan. 1986. Pesticides: amounts applied and amounts reaching pests. Bioscience 36(2).

57 Gilliom, R.J., J.E. Barbash, C.G. Crawford, P.A. Hamilton, J.D. Martin, N. Nakagaki, L.H. Nowell, J.C. Scott, P.E. Stackelberg , G.P. Thelin,

and D.M. Wolock. 2006. The Quality in Our Nation’s Wa ter: Pesticides in the Nati on’s Streams and Groundwater, 1992-2001 . Circular 1291.

58 Larson, S.J., P.D. Capel, and M. Majews ki. 1995. Pesticides in Surface Waters: Dist ribution, Trends and Governing Factors. Volume 2 of Pesticides in the Hydrologic System Series. Ann Arbor Press, Inc ., Chelsea, MI.

59 Leinenbach, P. 2015. Images of forest harvest areas where herbicides were applied using aerial broadcast application methods with helicopters in the Triangle Lake region of the central coast range of Oregon . Memorandum from P. Leinenbach to A. Henning. January 12, 2015.

60 Welsch, D.J. 1991. Riparian Forest Buffers: Function and Design for Protection and Enhancement of Water Resources . USDA Forest Service.

NA-PR-07-91.

61 Kiffney. P.M., J.S. Richardson, and J.P. Bull. 2003. Responses of periphyton and insects to expe rimental manipulation of ripar ian buffer width along forest streams. Journal of Applied Ecology 40:1060-1076.

62 Gomi, T., R.C. Sidle, and J.S. Richardson. 2002. Understa nding processes and downstream li nkages of headwater systems. Bioscience 52(10).January 30, 2015

17 Other recent studies and reports also support NOAA and EPA’s de termination that additional management measures for forestry are needed to address aerial herbicid e application due to a reasonably foreseeable threat to coastal waters and designated uses. One of the common indirect adverse effects on water quality and designated uses, particularly cold-water fisheries uses,

occurs because herbicides can reduce the growth and biomass of primary producers (i.e., algae and phytoplankton) that form the base of th e aquatic food chain. A decrease in primary production (e.g., plants and algae) can have significant effects on consumers, such as salmonids and other animals that depend on the primary producers for food. 63 The effects are often reported

at herbicide concentrations well below levels that would have a direct effect on consumers. In addition, there are concerns about the increased toxicity of mixtures of he rbicides and other pesticides to aquatic organisms. 64 Although it is difficult to predic t the magnitude and duration of these impacts on juvenile salmon because the ex tent of salmonid effects often depend on the interaction with many different pa rameters (e.g., availability of alternative food sources, water temperature, and other abioti c factors), NMFS has found that some herbicides used in aerial application present risks to sa lmonid populations protected by Oregon water quality standards and the habitat necessary for life st ages protected by those standards. 65

A few studies have indicated that aerial application might not result in herbicides exceeding toxic thresholds for humans or aquatic life in fish-bearing and drinking water streams, 66 at the interface of fish- and non-fish-bearing streams, 67 or at drinking water facilities in Oregon. 68 None of the studies, however, were focused on impact s to non-fish-bearing stre ams and do not provide sufficient evidence, based on othe r information, that coastal wate rs and designated uses are not reasonably or foreseeably threatened by the aerial application of herbicides over non-fish-bearing streams. For example, an ODF study that looked at the effectiveness of FPA aerial spray buffers for herbicides and fungicides on fish-bearing streams stated th at they could not draw any

conclusions about the FPA’s effectiveness at protecting water quality for non-fish-bearing

streams. 69 A USGS study in the McKenzie River basi n looked broadly at urban, forestry, and agriculture pesticide use and the impacts it had on drinking water. 70 The study, which took place outside the coastal nonpoint management area, also notes that forestry sa mpling was inconsistent because of irregular and intermittent pesticide application patterns among tributaries and the difficulty of capturing runoff events in the spri ng after application. A National Council for Air and Stream Improvement (NCASI) study in the Needle Branch in the Oregon Coast Range

looked at how herbicide levels in streams varied during storm events at three sample sites in

63 Marczak, L.B., T. Sakamaki, S. L. Turvey, I. Deguise, S. L. R. Wood, and J. S. Rich ardson. 2010. Are forest ed buffers an effec tive conservation strategy for riparian fauna? An assessment using meta-analysis. Ecological Applications 20:126–134.

64 Relyea, R.A. 2009. A Cocktail of Contaminan ts: How mixtures of pesticides at low c oncentrations affect aquatic communities. Oecologia 159( 2): 363-376; Gilliom et al., 2006; Carpenter, K.D., S. Sobe szczyk, A. Arnsberg, and F.A. Rinella. 2008. Pesticide Occurrence and Distribution in the Lower Clackamas River Basin, Oregon, 2000-2005 . Scientific Investigations Report 2008-5027.

65 NMFS. 2011. National Marine Fisheries Service Endangered Species Act Secti on 7 Consultation Biological Opinion Environmental Protection Agency Registration of Pesticides 2,4-D, Triclopyr BEE, Diuron, Linuron, Captan, and Chlorothalonil. NOAA National Marine Fisheries Service, June 30, 2011.

66 Dent, L., and J. Robben. 2000. Oregon Department of Forestry: Aerial Pes ticide Application Monitoring Final Report . Oregon Department of Forestry, Pesticides Monitoring Program. Technical Report 7.

67 National Council for Air a nd Stream Improvement. 2013. Measurement of Glyphosate, Imazapyr, Sulfometuron methyl, and Metsulfuron methyl in Needle Branch Streamwater . Special Report No. 130-1.

68 Kelly, V.J., C.W. Anderson, and K. Morgenstern. 2012. USGS and Eugene Water and Electric Board. Reconnaissance of Land-Use Sources of Pesticides in Drinking Water, McKenzie River Basin, Oregon . Scientific Investigations Report 2012-5091.

69 Dent and Robben, 2000.

70 Kelly et al., 2012.January 30, 2015

18 harvest units downstream of non-fi sh-bearing areas where herbicides were applied aerially with

no buffers. 71 The sample sites themselves were collect ed in fish-bearing streams with 50-foot riparian buffers. The study noted clear pulses of herbicides at each storm event with declining

levels downstream and over several storms.

Oregon relies on the national best management pr actices established thro ugh the federal FIFRA pesticide labels to protect non- fish-bearing streams. Currentl y, EPA, NMFS, U.S. Fish and Wildlife Service, and U.S. Department of Agricu lture are working to improve the national risk assessment process to include all ESA-listed spec ies when registering a ll pesticides, including

herbicides. Given the scale of this undertaking, the federal agencies are employing a phased, iterative approach during ongoing registration reviews. These ongoing federal processes, however, should not preclude Oregon from pur suing state-level improvements to manage

herbicides in the context of its unique forestry lands cape and sensitive species.

Oregon and other Pacific Northw est states have determined the importance of state action beyond the national FIFRA label requirements to protect water quality and designated uses, including salmon, in their respective states. 72 Oregon has 60-foot spray buffers for nonbiological insecticides and fungicides on non-fish-bear ing streams (OAR 629-620-400(7)) and 60-foot spray buffers for herbicides on wetlands, and fi sh-bearing and drinking water streams (OAR 629- 620-400(4)). Other Pacific Northwest states have established more stringent forestry spray buffer requirements for herbicides along non-fish-beari ng streams. For example, for smaller non-fishbearing streams, Washington maintains a 50-fo ot riparian and spray buffer (WAC-222-38-040). Idaho has riparian and spray buffers for non-fi sh-bearing streams of 100 feet (IAR 20-02-01). California sets riparian buffers for non-fish-bearing streams af ter consulting with the local forester, which implicitly restricts the aerial ap plication of herbicides near the stream (14 CCR 4).

Though Oregon has neither spray nor riparian harves t buffers for herbicides that are aerially applied on small non-fish-bearing streams, the O DA Pesticide Division re quires applicators to attend training and obtain licen ses prior to spraying pestic ides. ODF requires pesticide applicators to complete a Notification of Op eration at least 15 days before applying on

forestlands 73 and to maintain a daily chemical application form. 74 On the Notification of Operation form, the applicators must list which pesticides might be applied, the stream segments on which the pesticides might be applied, and when application might occur within a 2–3 month period. The notification form does not, however, sp ecify when application will occur within a 1– 2 week period or postapplication, the pesticides that were ap plied and how much. The form reminds the applicator of the required spray bu ffers for fish-bearing and drinking water streams, but does not specify protections for non-fish-beari ng streams or voluntary be st practices included

in the OAR Guidance Manual for Chemicals and Other Petroleum Products (Division 620) that

71 National Council for Air a nd Stream Improvement, 2013.

72 Peterson, E. 2011. Comparative Characterization of Pacific Northwest Forest ry Requirements for Aerial Application of Pesticides

. Memorandum to Scott Downey, EPA and David Powers, EPA. August 30, 2011.

73 Oregon Department of Forestry. 2015. Forest Activity Electr onic Reporting and Notification Sy stem (FERNS). Available at: https://ferns.odf.state .or.us/E-Notification

74 Oregon Department of Forestry. 2013. Da ily Chemical Application Record Form . Revised September 2013. Available at: http://www.oregon.gov/odf/priv ateforests/docs/Chemical ApplicationForm_Final.pdf

.January 30, 2015

19 should be followed other than a general sentence that applicators should comply with rules under

the Forest Practices Rule and label instructions.

Oregon’s broader strategy for cross-program c oordination on pesticides includes its Water Quality Pesticide Management Plan, Pesticide Stewardship Program, and Pesticide Analytical and Response Center (PARC). Th e Water Quality Pesticide Mana gement Plan guides statewide actions to protect waters from pesticide cont amination using water quality to drive adaptive management. Oregon’s PSP is an ODEQ initiative th at works with State and local partners to collect and analyze water samples in areas with the greatest potential for impacts to aquatic life and human health. PARC is a multistate agency gr oup that coordinates investigations to collect and analyze information about reported incidents.

NOAA and EPA acknowledge the progress Oregon has made in establishing a multiagency management team and programs to assess and ma nage pesticide water quality issues. As these efforts apply to the aerial application of herb icides in the coastal nonpoint management area, however, the federal agencies note that water quality monitoring data on pesticides is still limited in the State and that, while Oregon has establis hed ten PSP monitoring areas in nine watersheds, the State only launched two pilots within the coastal nonpoint management area very recently. While NOAA and EPA recognize that the PSP pr ogram targets the most problematic or potentially problematic watersheds and that Or egon received recent funding to expand into two new watersheds, the agencies believe that if mo nitoring data are to dr ive adaptive management, the State should develop and maintain more robust and targeted studies of the effectiveness of its pesticide monitoring and best management prac tices within the coasta l nonpoint management area. The federal agencies encourage the State to design its monitoring program in consultation

with EPA and NMFS.

NOAA and EPA believe that Oregon could de velop additional management measures for forestry that will protect non-fish -bearing streams during the aerial application of herbicides to achieve and maintain water quali ty standards and protect designa ted uses through a variety of mechanisms. Some potential approaches could in clude one or more of the following actions:

 Adopt rules that would require spray buffers for the aerial app lication of herbicides along non-fish-bearing streams. Oregon may wish to look at spray buffer requirements that neighboring states have established for ideas;

 Adopt riparian buffer protections for timber harvest along non-fish-bearing streams that, by default, would also provide a buffer during aerial spraying;

 Expand existing guidelines for voluntary buffers fo r the aerial application of herbicides on non-fish-bearing streams;

 Educate and train aerial applicators of herbicides on the new guidance;

 Revise the ODF Notification of Operation form required prior to chemical applications on forestlands to include a check box for aerial appli cators to indicate that they must adhere to FIFRA labels for all stream types, including non-fish-bearing streams;

 Track and evaluate the implementation of volunt ary measures for the aerial application of herbicides along non-fish-bearing streams to assess the effectiveness of these practices and, if adjustments are needed, to achieve water qual ity standards and prot ect designated uses;January 30, 2015

20  Provide detailed maps of non-fish-bearing streams and other sensitive site s and structures to

increase awareness of the areas that need protection among the aerial applicator community;

and

 Encourage the use of global positioning system (GPS) technology, linked to maps of nonfish-bearing streams, to automatically shut off nozzles before crossing non-fish-bearing

streams.

If Oregon chooses a voluntary approach, th e State must also m eet the other CZARA requirements for using voluntary, incentive-base d programs as part of the State’s coastal nonpoint program. This includes a description of the methods the State will use to track and evaluate the voluntary programs, a legal opinion stating it has th e necessary backup authority to require implementation of the voluntary measures, a description of the process that links the implementing agency with the enforcement agency, and a commitment to use the existing enforcement authorities, where necessary.

II. CONDITIONS THAT ARE NO LONGER A BASIS FOR THIS DECISION

A. URBAN AREAS MANAGEM ENT MEASURES—NEW DEVELOPMENT

PURPOSE OF MANAGEMENT MEASURE: The purpose of this management measure is 4- fold: (1) decrease the erosive potential of in creased volumes and velocities of stormwater associated with development-induced changes in hydrology; (2) remove suspended solids and associated pollutants entrained in runoff that result from activities occurring during and after development; (3) retain hydrological conditions that closely resemb le those of the predisturbance condition; and (4) preserve natural sy stems, including in-stream habitat.

CONDITION FROM J ANUARY 1998 FINDINGS: Within 2 years, Oregon will include in its program: (1) management measures in confor mity with the 6217(g) guidance; and (2) enforceable policies and mechanisms to ensure implementation throughout the coastal nonpoint management area (1998 Findings, section IV.A).

FINDING: Based on information provided in Or egon’s March 2014 submission, NOAA and

EPA now believe the State has satisfied this condition. The new development management measure is no longer a basis for finding that Or egon has failed to submit an approvable program

under CZARA.

RATIONALE NOT INCLUDED: NOAA and EPA will provide a rationale for public comment if/when the federal agencies are in a position to propose full approval of Oregon’s coastal nonpoint pollution control program at a later point in time.

B. OPERATING ONSITE SEWAGE DISPOSAL SYSTEMSJanuary 30, 2015

21 PURPOSE OF MANAGEMENT MEASURE: The purpose of this management measure is to
minimize pollutant loadings from operating OSDS.

CONDITION FROM J ANUARY 1998 FINDINGS: Within 2 years, Oregon will finalize its proposal to inspect operating OSDS, as propos ed on page 143 of its program submittal (1998 Findings, section IV.C).

FINDING: Based on information provided in Or egon’s March 2014 submission, NOAA and

EPA now believe the State has satisfied this condition. The OSDS management measure is no longer a basis for finding that Oregon has fa iled to submit an approvable program under

CZARA.

RATIONALE NOT INCLUDED: NOAA and EPA will provide a rationale for public comment if/when the federal agencies are in a position to propose full approval of Oregon’s coastal nonpoint pollution control program at a later point in time.

III. ADDITIONAL COMMENTS

A. AGRICULTURAL MANAGEMENT MEASURES—EROSION AND SEDIMENT CONTROL, NUTRIENT, PESTICIDE, GRAZING, AND IRRIGATION WATER

MANAGEMENT

As noted in the Foreword, the federal agencies invited public comment on the adequacy of the State’s programs and policies for meeting the 6217(g) agriculture management measures and conditions placed on Oregon’s Coastal Nonpoint Program.

PURPOSE OF MANAGEMENT MEASURES: The purposes of these management measures are to (1) reduce the mass load of sediment reaching a water body and improve water quality and the use of the water resource; (2) minimize edge -of-field delivery of nutrients and minimize leaching of nutrients from the root zone; (3 ) reduce contamination of surface water and ground water from pesticides; (4) reduce the physical di sturbance to sensitive areas and reduce the discharge of sediment, animal waste, nutrients, and chemicals to surface waters; and (5) reduce nonpoint source pollution of surface waters caused by irrigation.

CONDITIONS FROM JANUARY 1998 FINDINGS: Within 1 year, Oregon will (1) designate agricultural water quality management areas (AWQMAs) that encompass agricultural

lands within the coas tal nonpoint management area, and (2 ) complete the wording of the alternative management measure for grazing, consistent with th e 6217(g) guidance. Agricultural water quality management area plans will include management measures in conformity with the 6217(g) guidance, including written plans and equi pment calibration as required practices for the nutrient management measure, and a process for identifying practices that will be used to achieve the pesticide management measure. The State will develop a process to in corporate the irrigation water management measure into the overall AWQMA plans.

Within 5 years, AWQMAPs will be in place (1998 Findings, section II.B).January 30, 2015

22 DISCUSSION: In 2004, the federal agencies provide d Oregon with an informal interim approval of its agriculture conditions, believing th at the State had satisfied those conditions, largely though its Agriculture Water Quality Management Act (ORS 568.900-933, also known as SB 1010) and nutrient management plans (ORS-4 68B, OAR-603-074). At that time, the federal agencies found that those programs demonstrated that the State had processes in place to implement the 6217(g) management measures for agriculture as CZARA requires.

Although the federal agencies initia lly found that those programs en abled the State to satisfy the agriculture condition, prior to a nnouncing the proposed decision, some specific concerns with the State’s agriculture program were brought to the federal agencies’ attention, such as:

 Enforcement is limited and largely complaint-driven; it is unclear what enforcement

actions have been taken in the coas tal nonpoint management area and what improvements resulted from those actions.

 The AWQMA plan rules are general and do not include specific requirements for implementing the plan recommendations (e.g., specific buffer requirements to adequately protect water qua lity and fish habitat).

 AWQMA planning has focused primarily on im paired areas when the focus should be on both protection and restoration.

 The State does not administer a formalized process to track implementation and effectiveness of AWQMA plans.

 AWQMA planning and enforcement does not address “legacy” issues created by agriculture activities that are no longer occurring.

Given these concerns, NOAA and EPA chose to solicit additional public comment on whether the State had satisfied the 6217( g) agriculture management measure requirements and the conditions related to agriculture placed on its program. The federal agencies appreciate the comments provided and are considering them clos ely. NOAA and EPA will work with the State, as necessary, to ensure it has programs and policies in place to satisfy all CZARA 6217(g) requirements for agriculture before proposing and making a final decision that the State has a fully approved coastal nonpoint program. For a summary of the comments received related to agriculture, see http://coast.noaa.gov/ czm/pollutioncontrol/

.

IV. LIST OF ACRONYMS AND ABBREVIATIONS

Acronym or Abbreviation Definition

AWQMA Agricultural water quality management area

AWQMAP Agricultural water quality management area plan

BiOp Biological opinionJanuary 30, 2015

23 Acronym or Abbreviation Definition

Board Board of Forestry

CMER Cooperative Monitoring Evaluation and Research

Coastal Nonpoint Program Coastal Nonpoint Pollution Control Program

CSRI Coastal Salmon Restoration Initiative

CZARA Coastal Zone Act Reauthorization Amendments of 1990

DBH Diameter at breast height

EPA Environmental Protection Agency

EQC Environmental Quality Commission

ESA Endangered Species Act

Federal agencies National Oceanic a nd Atmospheric Administration and the U.S. Environmental Protection Agency

FIFRA Federal Insecticide, F ungicide, and Rodenticide Act

FPA Forest Practices Act

GIS Geographic information system

GPS Global Positioning System

ICS Interagency Coordinating Subgroup

IMST Independent Multidisciplinary Science Team

kPa kiloPascal

NCASI National Council for Air and Stream Improvement

NMFS National Marine Fisheries Service

NOAA National Oceanic and Atmospheric Administration

OAR Oregon Administrative Rules

ODA Oregon Department of Agriculture

ODEQ Oregon Department of Environmental Quality

ODF Oregon Department of ForestryJanuary 30, 2015

24 Acronym or Abbreviation Definition

OPSW Oregon Plan for Salmon and Watersheds

Oregon Plan Oregon Plan fo r Salmon and Watersheds

OSDS Onsite sewage disposal systems

PARC Pesticide Analytical and Response Center

PCW Protection of Cold Water

PSP Pesticide Stewardship Partnership

RipStream Riparian and Stream Temperature Effectiveness Monitoring Program

State State of Oregon

TMDL Total Maximum Daily Load

U.S. United States

USGS U.S. Geological Survey