Response to Questions about NTMP Process & Time Line
Hi Jodi Frediani
This email is to seek clarification on the procedure and time-line for the SJWC NTMP. It attended the Sept. 11 meeting and heard your presentation there, have downloaded, made a hard copy and have studied the set of slides you used at that meeting, and have also made a copy and studied the later posting on the NAIL Forum by Terry Clark on the NTMP process. I attended the most recent NAIL meeting on Nov. 14. After all of this, I am still very unclear about the process and just where we are in the process today.
I will try to do my best to answer, but some of your questions don't have firm answers at this time. Thanks for your interest!
1. According to your chart, the CDF has 10 days to do the 1st Review. The 1st Review has been done and I have a hard copy of it and have studied that too.
Question 1a: At this stage, has the NTMP been "accepted" for filing? If so, I do not understand how the plan can be accepted for filing by the CDF until SJWC has provided at least minimally satisfactory responses to the 78 questions raised in the 1st Review. Please clarify.
The NTMP was accepted for filing on October 28. I agree with your assessment that it should not have been accepted with 11 pages of unanswered question including,â€Does SJW even qualify to submit an NTMP?â€ But CDF thought differently. See my posted letter to CDF on this issue.
I think they think they can get away with this based on when the "clock" starts ticking. The information I gave out re the start of the "clock" (the 45 day minimum review period) which is posted on the NAIL webpage is correct for THPs, but incorrect for NTMPs. Rather than starting the clock when the plan is accepted for filing, in the case of an NTMP, it is starts at the completion of the pre-harvest inspection (PHI).
(Forest Practice Act 4593.7 Review of plans; non-conforming plans; denial of plans; appeals. (a) The director has 45 days from the date the initial inspection is completed as provided in Section 4604, or a longer period mutually agreed upon by the director and the person submitting the nonindustrial timber management plan, to review the plan to determine if the plan is in conformance with the rules and regulations of the board and this chapter."
The PHI is supposed to be held within 10 days of filing, but Big Creek, in this case, agreed (or maybe even volunteered) to have the PHI(s) after Thanksgiving, on the grounds that there should be a multi-day review and it would not be possible to find acceptable dates before then. (4604 says 10 days from filing or longer if agreed upon).
So, in reality, the public and agencies will not be shorted review time on the new information (requested in the First Review questions) that must be submitted prior to the PHI. However, there are other significant issues which I have addressed in my posted letter.
Question 1b: You said in your slides that once the plan is "accepted," the "clock starts ticking." I have understood your point here to be that within 10 days of acceptance, the PHI has to take place? If the NTMP has been accepted, then the 10 days have already gone by and the PHI is supposed to have taken place. Has it? I understand that it has not. Not only that, I understand there is still great controversy about who will be on the Review Team, Aldercroft Water District and the Santa Clara Valley Water District, for example. If the PHI has not taken place, what is the explanation?
In my power point presentation, I tried to accurately and simply reflect the Forest Practice Rules. With the exception of the time the clock starts ticking (see above), I believe the rest of the information is accurate. (Some rules that apply to THPs apply to NTMPs, but some are different.) However, one has to realize that the time frame just refers to minimums. I encourage you or anyone interested in following more closely to go directly to the Forest Practice Rules themselves. A spiral bound book can be purchased from CDF for $5 or the rules can be accessed on-line. A link can be found on CRFM's home page at www.crfm.org. Finding and keeping track of the various rules that apply to a given plan is more like a convoluted treasure hunt, rather than an arcane secretarial task.
In this case I was told by CDF that Big Creek requested that the PHI take place after Thanksgiving. I also understand that CDF is looking at a three-day PHI and is currently trying to find acceptable dates for all agencies involved. Since this is such a high-profile plan, it appears that agencies will be sending out multiple participants for the PHI. I am told that there will be approximately 35 people in attendance.
Tentative dates were originally set for December 7, 8 and 9. The tentative dates were then changed to December 14, 15, and 16, but these are no longer valid. The PHI may get postponed until after the first of the year.
Question 1c: Does SJWC file an amended plan in response to the 1st Review? An amendment? Or what? When and how does one get a copy of SJWC's responses? Are these responses in writing?
Per my response to Question 1a above, the clock has not started ticking yet; not until the completion of the PHI. However, the issue is really moot, as the review for this plan will go way over the minimum 45 day required review period.
SJW will submit revised pages in response to the 1st Review questions due prior to the PHI. I believe the revised pages will be posted on CDF's ftp website:
Or anyone can request a copy of the revised pages for copying costs from CDF Felton office:
The change pages will be incorporated into the NTMP that was accepted for filing. The pages are to be noted as revised and dated. They are to replace the original pages where ever changes have been made. This leads to lots of paper and the opportunity for much confusion as revised pages continue to get added and replaced throughout the review process.
2. Your charts seem to say that comment letters to the CDF should be sent in the 10 day period "after the last significant info is received by the CDF."
At the Nov. 14 NAIL meeting, we were told that comment letters from the public can be sent now (and the NAIL Steering Committee members present seemed to be suggesting that they should be sent now).
Question 2: But how can a member of the public send a comment letter to the CDF when we do not know what the plan ultimately is going to contain (presumably SJWC has not yet responded to the questions in the 1st Review? In other words, how does a member of the public make an intelligent comment at this stage?
My power point showed the latest date for submission of comments. Comments can be submitted at any time once the plan has been filed.(A number of people have already submitted generic comments.) Needless to say, you are quite correct that it is difficult to intelligently comment at this stage of the game hence, the suggestion to wait until the plan has morphed sufficiently, based on PHI reports and Review Team suggestions, etc. The more specific comments are to particular issues addressed in the plan, the more effective they will be, Though volume sends a clear message that this plan will impact a huge population.
3. Public Hearing. I was quite surprised to hear at the Nov. 14 meeting that the "decision makers," (I thought there is only one, namely, the CDF Director) is not even present at the Public Hearing.
Question 3: Is this true?
YUP. The public hearing is more or less just an opportunity for the public to vent. CDF hopes to gather pertinent info at the hearing, but does not offer any. Nor does it usually engage in dialog or answer questions. At the recent hotly contested Lompico public hearing with 250+/- people in attendance, CDF did give the RPF an opportunity to respond to questions at the end.
The public hearing is either tape-recorded, or video-taped. Rich Sampson, RPF, CDF Forest Practice Officer, who will be present at the hearing, will head up the NTMP review and the PHI. I expect that Rich Sampson will make PHI recommendations for CDF. However, Anthony Lukacic, CDF Santa Rosa, has taken over as Review Team Chair and will most likely be the one who makes the Review Team recommendations. I have only been aware of one plan this past year where Mr. Luckacic actually attended the PHI. I find this more problematic than the fact that he does not attend the Public Hearing, because he is making significant decisions without having been on the ground to see things first hand. Donâ€™t be surprised, however, if he shows up for this one.
4. Public Hearing. You indicate that speakers at the Public Hearing each have from 3-5 minutes to speak. If this is generally true, is there no mechanism for an organization such as NAIL to make a coordinated, longer presentation? Many of us have been looking to NAIL to develop a coordinated response to all of the issues being raised, or at least the key ones, where necessary using experts of various kinds who will speak to the issues and provide references or source material to support their positions. If no person has more than 3-5 minutes, it is hard to understand how a "coordinated presentation" can take place.
NAIL members can make a "coordinated" presentation simply by dividing up topics so that each person speaks on a different issue or different portion of each issue in three minute increments. NAIL can certainly ask to be given a block of time, but I have never seen a CDF public hearing be that accommodating. It's a pretty basic process, nothing like other hearings or other official Boards or bodies.
Only counties with Special Rules (Santa Clara, Santa Cruz, San Mateo, etc.) even have public hearings. Most hearings go unattended. FYI, CDF wanted Santa Cruz County to provide two armed guards for the Lompico hearing. The county declined to do so. Needless to say, the hearing was passionate, but uneventful. People were in attendance with their children and babies.
5. Public Hearing. If one can speak only 3-5 minutes at the public hearing, but has more materials than can be verbally submitted in that period of time, is there a mechanism by which a speaker at the Public Hearing can submit further written materials to support his or her remarks, such as members of Congress often do when they submit in writing "extended remarks" elaborating their points made verbally on the floor of Congress?
Question: In other words, just how does a "coordinated presentation" on all the key issues get made to the "decision maker(s)"?
I consider the public hearing an opportunity to show CDF, the Board of Supervisors, the Media and the community how much concern and opposition there is to a contentious plan. If you have legitimate, significant comments based on issues of environmental significance or issues of public health, safety and welfare, I recommend that those comments be submitted in writing, whether or not they are made at the public hearing. CDF is required to provide a written response to all such comments, both those made during the public hearing and those submitted in writing. They are not required to respond to philosophical issues. Such written material is submitted to Santa Rosa and hopefully, the â€œdecision makerâ€ reads them. A copy of the video of the hearing will also be sent to Santa Rosa. I do expect CDF personnel from Santa Rosa to be present at the PHI.
6. Review Team Meeting.
Question: Does the Review Team Meeting, at which presumably the Review Team Recommendations are prepared, take place before or after the Public Hearing? And if before the Public Hearing, how do the public inputs at the Public Hearing even get taken into consideration at all by the Review Team?
The Review Team (RT) meeting is always held after the Public Hearing. If there are issues to be incorporated at that time, the opportunity is there. However, there is also the opportunity to fine tune the plan based on written testimony as well. With the RT occurring after the PH, it is difficult for the public to comment at the public hearing on the "final" proposed version of the plan. Most of the "wheeling and dealing" takes place at the RT meeting(s) (often referred to as Second Review). This is where the agencies try to hammer out their differences with the plan RPF.
7. Public Hearing
Question: What event or point in this whole procedure sets the time frame within which the Public Hearing must be scheduled, and how many days is that time frame?
The County must request a public hearing within 24 hours of the PHI. And CDF is required to schedule the hearing within 25 days of the request. I spoke with Rich Sampson and he seemed to think the rule did not allow for CDF to schedule more than 25 days after the request, however, this has already happened, as the County requested a PH awhile ago. The county has submitted a second letter requesting that the PH take place after January 1.
I know NAIL wants the PH to be scheduled after the first of the year and has made a request for such to CDF.
CDF is only required to notice the public 5 days in advance of the PH, but it is possible that the 'tentative' date will be know prior to that.
8. Official Response to Comments
Question: Does the Official Response to Comments take place only after the CDF Director has already approved the plan?
9. Appeal. You indicate in your charts that there is a need to get a vote of the Board of Supervisors to appeal before the Decision Date.
Question: How can the Board of Supervisors vote to appeal before the Supervisors even know what the decision is going to be?
They can meet and agree to appeal if their staff non-concurs or intends to non-concur and finds that their concerns are not addressed. All RT members act in an advisory capacity only. CDF does not have to incorporate mitigations requested by other agencies. If they do not, some of those agencies, including the County, may non-concur.
If the Board of Supes waits till after the plan is approved, there is the possibility that timber operations could commence prior to the Board of Supes decision to appeal.
Question: If the Board of Forestry decides not to hear the appeal, what remedy does the County have? Litigation immediately?
Either the County or the public can choose to litigate immediately.
10. Other. My impression is that there are agencies in addition to the CDF whose concurrence is specifically needed for the NTMP to be approved, or who have laws that first need to be complied with by the Timber Owner. An example of the latter would be the Santa Clara County Noise ordinance. Are these all preempted by the decision of the CDF?
My understanding is that local ordinances are superceeded by State regulation, ie. the Forest Practice Rules in this instance. The Review Team members have the ability to non-concur. CDF prefers to resolve non-concurrences prior to plan approval, but this does not always happen. The Regional Waterboard can actually stop plan approval with an unresolved non-concurrence (recent legislation gave them this power).
The public can still bring up the issue of noise as an issue of public health, safety and welfare. Some people work at home, work nights and sleep days, etc. According to my understanding, the local ordinance cannot simply be invoked.
There are also some other points, such as the case of Santa Cruz County vs Big Creek before the California Supreme Court which ultimately could have a bearing on this NTMP. I do not not been able to learn the status of that case on the Supreme Court's docket. As you know, the issue there is whether the CDF (as opposed to the County) has jurisdiction on the question where logging can occur, as well as over how it occurs. I also have not been able to find out from the County of Santa Clara what its position is, i.e., whether it takes the legal position that its zoning ordinances give it authority over the "where" logging can be done, to the exclusion of the CDF. In trying to find out, I had the impression that Santa Clara County was more or less oblivious to this point, or at least I could find no one who could speak to the issue. That was, however, about 2-3 weeks ago, so maybe it is being actively considered now.
I am not sure that the court case you refer to will have an immediate bearing on this NTMP, if resolved prior to NTMP approval. The case will determine whether counties have the right to determine where logging takes place, not how logging is conducted. The only way I know of that the County could determine that logging should not take place on SJWC lands would be through zoning. This would be a complex process involving public hearings, etc. I suppose the County could make an independent determination that this "area" is not suitable for logging, but that would be something to be discussed with the county. This would take a vote of the Board of Supervisors. Of course, all this would depend on the outcome at the State Supreme Court.
San Mateo and Santa Cruz Counties currently have ordinances which prohibit logging in certain locations. San Mateo has a 1000' no-cut buffer adjacent to habitable structures and Santa Cruz County has limited industrial logging to certain zone districts. The counties are in two different appellate districts. In the case of San Mateo County the appellate court upheld the county's right to determine where logging takes place. In the case of Santa Cruz, the court determined that prohibiting logging was, in fact, engaging in the "conduct" of logging and therefore not in the county's jurisdiction.
Both appellate courts have determined that only the state has jurisdiction over the conduct of timber operations. In my last communication with outside council for Santa Cruz County, I was informed that the case has not been docketed for the State Supreme Court yet and there is no known date. I was told I would be informed when a date is set.
 Letter to CDF questions validity of NTMPâ€