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Sierra Takes On Deadheads

National and state environmental groups have focused on the deadhead logging issue, following Seminole Tribune articles last month. The following letter was sent, Oct 9, 2000, to Florida Gov. Jeb Bush.

Dear Governor Bush,

The Sierra Club, Northwest Florida Group, has been involved in the deadhead logging issue since December of 1999. At that time we provided comments and photographs for the consideration of the Cabinet, sitting as the Trustees of the Internal Improvement Trust Fund, regarding concerns that arose in the course of the one-year trial period of deadhead logging.

As you know, this practice was reinstated in 1998, under the Chiles administration, after being discontinued in 1974 because of objections raised by the Florida Game and Fresh Water Fish Commission, whose major concern was the loss of aquatic habitat. At the 1999 meeting, the Board of Trustees agreed to a four month moratorium on the issuance of any new use agreements, during which time Best Management Practices were to be developed and incorporated into the regulatory permit process.

The Technical Workgroup convened by the DEP (DLTAC) then produced new recommendations for the continued recovery of pre-cut timber, which were subsequently adopted. At the expiration of the moratorium, permitting for deadhead logging resumed under the new rules.

Since that time, new concerns regarding this logging practice have arisen, not the least of which is the Newnan's Lake fiasco which resulted in damage to a portion of the largest ancient canoe find in North America.

The Sierra Club appreciates your decisive action in banning deadhead logging in Florida's lakes until this matter can again be considered by the Governor and Cabinet. This ban is especially appropriate, since lakes were never addressed by the DLTAC. The environmental considerations incorporated into the Best Management Practices were formulated specifically for rivers, and no environmental impact studies, investigations of impacts to threatened and endangered species, recommendations for permit conditions or protection needs for the State's lakes were addressed in any manner whatsoever.

This issue of lake deadhead logging which the Governor, Board of Trustees, and the various State regulatory agencies will consider now calls into question the viability of the entire deadhead logging program. It must be decided whether deadhead logging should be allowed at all in Florida lakes, and if so under what conditions. A careful examination of the current state of deadhead logging in rivers will help provide the information needed to make this decision. In particular, it should be investigated as to whether the permitting process and Best Management Practices for river recovery are effective in protecting environmental and cultural resources that belong to the people of the State of Florida.

The Sierra Club now seriously doubts that the deadhead permitting process, as presently structured, affords Florida's citizens the protection of valuable natural resources that they are entitled to, and we ask that you take the following comments into consideration.

In our comment letter prepared for the December, 1999 Cabinet meeting, we expressed a number of concerns, including the lack of adequate biological surveys performed prior to commencement of logging, the long contiguous stretches of river permitted in a single permit, the generalization of an unproven probable impact to many miles of river without regard for individual variations in habitat, species presence, or scope and duration of the extractions in a particular area, and the scarcity of natural woody debris in the rivers. In fact, in a report on deadhead logging prepared by the DEP in 1999, their Environmental Assessment Section mapped the snag habitat at 64 segments of the Apalachicola and Choctawhatchee Rivers and concluded that "Compared to other southeastern U.S. rivers, this is an extremely low availability of woody debris."

A paper attached to this report, entitled "Ecological and Morphological Significance of Old Growth Deadhead Logs in the Chipola River" by Donald Ray, FDEP NWD Biologist, described the sampling of two submerged logs to determine their habitat value. This paper concluded that "A more diverse and productive wildlife community was found in these two samples of old growth logs than bioassessments of 100 meter reaches of river at the Chipola river reference site near the Altha boat ramp. These findings are similar to the results of a sampling of a deadhead logon the Choctawhatchee River the previous month. Removal of an unquantified amount of the few remaining logs would have a negative impact to the river's fish and wildlife community." We also noted that widespread logging on the land surrounding the rivers has reduced the quantity and type of trees that will become future deadfalls, and further that many of the deadhead logs have been in the rivers for over a hundred years, and although they lack the crowns and root systems of natural deadfalls, they now form a supporting framework for more recent deadfalls. In the same 1999 DEP report, it was stated that "Since woody debris is such an important ecological resource, it is reasonable to recommend that steps be taken to enhance the amount of woody debris in Florida streams." A possible step to accomplish this, as stated in the report, is "Replacement of deadheads with fresh snags to offset the habitat loss and potential channel de-stabilizing effects of deadhead removal".

Although the final DLTAC recommendations contain a provision to prohibit recovery from stream reaches where woody debris is extremely limited, the pre-recovery assessment resources necessary to make an adequate determination of the location of these areas are plainly inadequate. Only two OPS inspectors, neither of whom are required to be certified divers, are provided for some two dozen plus permits, covering many miles of rivers. It is not possible for these inspectors to mark only those logs which may be harvested, as was suggested at the stakeholders' meeting by a number of environmental organizations. The funds to pay these OPS personnel come from the use agreement fee, which limits the funds available and in effect makes the inspectors employees of the loggers, which creates a conflict of interest. The DLTAC also failed to provide any provisions to replace deadheads with fresh snags to mitigate the effects of their removal.

In addition, our previous concern that a complete biological assessment of individual variations in habitat and species presence on these long river runs would be needed still remains a concern, due to the lack of personnel provided to make these assessments.

The Sierra Club also commented in 1999 that we were concerned about the level of enforcement that could be accomplished. In fact our concern seems justified, in that the DLTAC only provides for a minimum random inspection frequency of one per month. The DEP again cites lack of funds and personnel for a higher level of monitoring.

Although we had many serious concerns about the advisability of continuing to permit deadhead logging, as noted above, we recommended some steps that could be taken to offset some of the environmental damage from this practice. Our 1999 recommendations were to allow logging only in areas where a complete biological study had been completed, to require biologists, not the permittee, to identify the specific logs to be harvested, and to monitor on-site all activities by qualified personnel.

None of these conditions made it into the final DLTAC recommendations.

In 1999, we did not call for an outright ban on deadheading for a number of reasons, the primary one being the Attorney General's Opinion #96-64,rendered in 1996, which in essence stated that logs which had been branded by the original owners could be recovered as lost property, under certain circumstances.

In 1998, when the DEP asked the Chiles administration to reinstate deadhead logging for a one year trial period, three reasons were given for doing so. The first, that logging was occurring illegally anyway, is a specious argument that should be discounted in a society that lives by the rule of law, and can be addressed by increasing the penalties for poaching.

The second, that the Attorney General's Opinion allowed recovery of lost property, was taken by the DEP as a rationale for the wholesale issuance of permits statewide, without any prior investigation as to whether or not the waters being permitted for logging did in fact contain branded logs, which would meet the definition of lost property. It was assumed/decided at that time that branded logs were everywhere, mixed up together with the unbranded, and that the use agreement fee paid by the loggers is considered payment to the State for those unbranded logs. No provision was made for a prior determination as to the percentage or quantity of branded logs in a given location. In Newnan's Lake, observers have reported that the logs were not branded. In the paper referred to above by Donald Ray, he notes that "The permit applicant said logs in the Chipola River were not branded historically like in other Panhandle rivers." The Chipola River has been dammed to create Dead Lakes, which is presently being logged. It is reasonable to assume that if the logs in the Chipola River were not branded, then the logs which ended up in Dead Lakes also were not, and so we have a second instance of a lake permit that, if the AG's opinion were to be strictly applied, might not have qualified under the presumption of lost property.

When the DLTAC made the recommendations which ended the 1999 moratorium, it failed to provide adequate staff to make sufficient surveys prior to permitting, and it failed to require staff to be certified divers, thereby making it impossible to determine in advance whether branded logs exist in a particular river reach, and if so, if there are sufficient numbers to justify the environmental risk of recovery. Therefore, the use agreement as structured is faulty in two ways. It allows logging even when the Attorney General's Opinion appears not to apply, and it produces insufficient remuneration to the State, relative to the value of the property being harvested.

The third reason given for the reinstatement was the economic impact on Panhandle fishermen from the recently enacted net ban, and this logging activity was presented as a way to replace some of the income lost from the ban. In reality, however, the beneficiaries of the State's generosity are not the displaced fishermen. The true beneficiaries are the owners of very expensive homes being built in the rapidly developing panhandle, who purchase the end product in the form of floors, stairs, windows, and custom furniture manufactured from the last of this old growth lumber that will not be available for many, many generations, or perhaps never again. At the March 31, 2000 Stakeholders' meeting, John Terry, Santa Rosa Beach mill owner, discussed the economic impacts of this activity. He gave, as an example, a figure of 2,000 board feet of timber worked through the system, and stated that this produces about $1,750.00 in sales tax, and employs 30 -35 people. Using this figure, at Walton County's 7%tax rate, the final consumer price paid works out to be $25,000.00, or about $12.50 per foot. The DEP's 1999 report to the Cabinet stated that it is estimated that 300,000 feet of high grade lumber rests at the bottom of the Blackwater and Yellow Rivers alone. At $12.50 per foot, 300,000 feet of timber should ultimately sell for $3,750,000, and produce $262,500 in sales tax revenue at the State (6%) level, and as this lumber becomes even more scarce, it is probable that the end user price paid will only increase. Clearly, this logging is a big money maker. When the DEP was asked at the Stakeholders' meeting how the $5,500 use agreement fee was determined, they stated that it was determined from the best estimates available at the time, provided by the loggers themselves, based on the average number of logs which could be recovered by a two man team in a year, and that it was considered to be fair, equitable and fairly easy. This fee is paid into the Internal Improvement Trust Fund. So, the use agreement ties the enforcement and training funds to the fee paid by the loggers, who are at the bottom of the economic pyramid in this activity. These fees do not provide for sufficient funding to protect environmental and cultural resources. The loggers themselves say that they are not getting wealthy from this work, and cannot afford to pay a higher use agreement fee, but it should be obvious from the industry's own example cited above that other monies are flowing into State coffers and should be made available to provide the needed funding to properly monitor deadhead logging.

There is also another issue raised by the Newnan's Lake incident, which is the interest of Florida's Indian Tribes in the deadhead logging industry. The permit condition presently in use states that if historical or archaeological artifacts are discovered by the logger, the permittee shall immediately notify the DHR. There is no assurance that the logger will recognize such an artifact, there is no enforcement to ensure compliance with the notification requirement, and there is no stop-work provision to provide the State or the Tribes with an opportunity to protect the artifacts. There is also no provision to notify the Tribes in advance of a permit approval, which should be required in areas with demonstrated historical Indian presence, as the Tribes themselves may then have a presumption of Tribal interest or ownership to the unbranded logs. The State Historic Preservation Officer should recognize that the Seminole and Miccosukee Tribes are successors-in-interest to the Indians who were here prior to the Seminole Wars. The State should also then recognize that, where there are no brands, there is a presumption of Indian heritage and that these unbranded logs may have been felled by the predecessors of the Tribes and may therefore in fact be the property of the Tribes.

In summary, the Sierra Club makes the following conclusions and recommendations:

Deadhead logging should be banned from the State's lakes entirely. It has the potential to cause great environmental damage because lakes provide important aquatic habitat, do not flush well, and the particular environmental safeguards needed were not addressed by the DEP. Additionally, it appears that most if not all of the logs recovered to date from lakes have not been branded.

Deadhead logging in rivers which contain sufficient numbers of branded logs that indicate prior private ownership and therefore warrant application of the lost property laws should only be allowed to continue with an independent, on-board observer on every logging operation and every trip. These observers should be qualified to determine the effects of the operation on habitat, species presence, woody debris content, bank stability, and any other pertinent environmental factors. They should also be trained divers, and able to recognize historical and cultural artifacts. They should be empowered to decide which logs may and may not be harvested, with the protection of environmental and historical resources their sole agenda. They should be hired and paid independently by State funds and they should not be beholden to any particular State agency or to the loggers and the pre-cut timber industry. The permitting process should be restructured to separate the funding from the processor so as to prevent any conflict of interest, and to require that all interested parties, including the Indian Tribes, receive sufficient prior knowledge before a permit is approved. If significant Indian artifacts, such as canoes, are discovered, the unbranded logs discovered on site should be required to be dated in order to establish ownership.

It is imperative that swift action be taken to protect the interests of all the citizens of Florida. Environmental, economic, historical and cultural concerns can all be protected, but only with decisive leadership from the Government of the State of Florida. Sincerely,

Tiana Burton
Conservation Chair, Sierra Club
Northwest Florida Group

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