By Matt Simmons, EPIC Legal Fellow
EPIC has noticed a disturbing trend in California’s private timber regulatory scheme. CAL FIRE has been approving timber harvest plans (THPs) prior to conducting necessary biological surveys for endangered, rare, and sensitive species. This practice prevents public and state agencies like the Department of Fish and Wildlife from adequately being able to review and comment on proposed timber harvest plans. By failing to conduct these surveys prior to public comment and interagency review, CAL FIRE is shirking its responsibilities as California’s private timber regulator.
EPIC teamed up with the California Native Plant Society, Center for Biological Diversity, Sierra Club California, and Forests Forever to write a letter to California Natural Resources Secretary Wade Crowfoot. The letter, which you can read at wildcalifornia.org, documents numerous instances where CAL FIRE has employed this problematic practice. Many of these instances have been documented during EPIC’s role in the campaign to save Jackson Demonstration State Forest. However, we have also encountered these issues on other forests throughout the state.
The letter goes on to explain why this behavior violates the California Environmental Quality Act (CEQA) and the Forest Practice Act (FPA). CEQA and the FPA both require opportunities for public review and comment on environmental projects prior to approval. This makes sense. If the public’s participation is going to be meaningful, then it has to be allowed prior to approval or else there won’t be any opportunity for the public’s input to affect the decision. By delaying these surveys until after projects have already been approved, CAL FIRE has effectively robbed the public of the opportunity to review and comment on the vital environmental information they reveal. EPIC has worked with northern spotted owl biologists and botanists who expressed frustration that relevant environmental information that they would have commented on was not available during the public comment period because of this practice.
Finally, the letter argues that, if CAL FIRE continues this practice, the State timber regulatory program must be decertified. Private timber harvest plans in California operate under a special certified timber regulatory program that exempts them from many of the provisions of CEQA. That’s why instead of preparing an Environmental Impact Report (EIR) they prepare a Timber Harvest Plan (THP). Although the timber regulatory program is more relaxed than CEQA, it’s not meant to return us to the wild west. For example, THPs, as certified regulatory documents, must be “available for a reasonable time for review and comment by other public agencies and the general public.” (Cal. Pub. Rec. Code § 21080.5(d)(3)(B)).
Clearly, CAL FIRE is failing to comply. How can a document be available for review and comment for a reasonable period of time if it isn’t released until after the public comment period ends? Under a different section of the State’s Public Resources Code, the Secretary of Natural Resources is required to decertify any regulatory program that does not comply with these requirements. We believe that should CAL FIRE continue this practice, Secretary Crowfoot will be required to proceed with decertification.
EPIC and its allies sent the letter on July 30, 2021. As of this writing, we have not received a response from Secretary Crowfoot. Be sure to subscribe to EPIC’s newsletters to hear updates on this developing story. We will continue to press this issue and work to ensure that California’s forests get the protection they deserve.