FPC Review

4. DISCRETIONARY AUTHORITY

ALASKA

There are provisions for exemptions and variances to the Alaska Forest Resources and Practices Regulations. Application must be made to the State Forester following procedures given in Section 235 of the Regulations. A general variation is usually granted for timber harvesting and other activities along small streamside zones in Region I. The variation may be revoked if the State Forester determines that granting it may be harmful to fish habitat or water quality. The Department of Environmental Conservation (DEC) is the authority for water quality issues.

BRITISH COLUMBIA

The Chief Forester, Regional Manager and District Manager are provided with discretionary authority to modify some provisions where flexibility is needed. Approval of other agencies is required where other resources are affected: for example, establishing objectives for Landscape Units or Sensitive Areas; varying the widths of riparian zones or reserves; removal or modification of trees within reserve zones of Riparian Management Areas.

Following are some examples of discretionary authority:

The Chief Forester must establish objectives for a Resource Management Zone and can vary or cancel an objective only by written order, in accordance with the Regulations and any directions from the Lieutenant Governor In Council or the Minister of Forests, Minister of Environment, Lands and Parks, or the Minister of Energy, Mines and Petroleum Resources. If the change significantly affects the public, the Chief Forester must provide for review and comment by the public.
The Chief Forester may establish recreation sites, recreation trails and interpretive forest sites and objectives for the sites and trails.
The District Manager may establish a Landscape Unit (e.g. for the preservation of biological diversity), or a Sensitive Area (e.g. visually sensitive areas or forest ecosystem networks), and can cancel or vary the objectives for the Landscape Unit or Sensitive Area only in accordance with the Regulations and directions from the Chief Forester and for a resource other than recreation, only with approval of a Designated Environment Official. If the change significantly affects the public, the District Manager must provide for review and comment by the public.
The District Manager may exempt the requirement for a Forest Development Plan, but approval of a Designated Environment Official is needed if the area is in a Landscape Unit, a Community Watershed or if such approval is required by a strategic-level plan.
The District Manager may exempt the requirement for a Logging Plan or a Silviculture Prescription.
The District Manager may amend a Forest Development Plan or an Access Management Plan without the amendment being made available for review and comment in the case of an emergency (e.g. destruction of timber), only with the approval of a Designated Environment Official.
The District Manager may amend an Operational Plan or a Range Use Plan without public review and comment if the amendment meets all of the requirements of the Act and Regulations.
The District Manager may exempt the requirements for soil rehabilitation of disturbed areas if the affected area is small, will not respond to treatment, or if the treatment will result in further damage.
The District Manager may exempt the requirement for a forest road use permit or special use permit if it is determined that the use will not impact the environment or cultural heritage resources and will not affect the use of the road by others.
The District Manager may exempt a person from the regulation dealing with roads and rights of way subject to conditions or alternative requirements.
A Designated Forest Official may exempt a person from the regulations dealing with fire use, prevention, control and suppression subject to conditions or alternative requirements.
Except with the consent of the Chief Forester, a person must not remove from British Columbia for processing, cones or seeds collected from Crown Land or seed orchards on private land which is subject to a licensing agreement with the ministry.
The District Manager can authorize removal of gravel or fill from a riparian area after consulting a Designated Environment Official.
The District Manager can authorize the modification of an approved road layout or design.
The District Manager may waive the requirement to locate landings 30 m away from a streambank if the District Manager determines that there is no other practical location for the landing, and if locating the landing closer to the stream will not create a high risk of sediment delivery to the stream.
The District Manager can authorize the use of different revegetation methods and schedules than those outlined in a deactivation prescription.
The District Manager can exempt the requirement to have permanent deactivation measures increase site productivity where future use of the area may be incompatible with these measures.
The District Manager can restrict non-recreational use of recreation sites, recreation trails, and interpretive forest sites.
The District Manager may restrict and regulate public recreation use on public forest lands.
The District Manager may permit motorized vehicles and equipment in wilderness areas.

CALIFORNIA

The State Board of Forestry has some discretionary authority in changing or creating new forest practice rules, but they are bound by the provisions of the Act. Also, public hearings are carried out before rules are changed or new rules are adopted.

Registered Professional Foresters (RPF's) can, in some cases, propose alternate practices to those in the rules, but a written justification is required. Justification is based on site specific conditions and on the basis that the alternate practice will meet the intent of the Forest Practices Act better than the practices prescribed in the Rules. Such professional judgement is commonly expected to be used in relation to silvicultural and operational practices. Forest practices that cannot be altered include those pertaining to special treatment areas along wild and scenic rivers and any special treatments that are prescribed in the Forest Practices Act.

Under some emergency conditions, such as emergency road repairs or salvage of insect-killed or windthrown trees, the normally required planning process can be avoided. Exemptions or variances due to emergencies must be substantiated in writing by an RPF.

FINLAND

Implementation of the Private Forest Act is the duty of the district forestry boards under the guidance of the National Forestry Centres. Tools for implementation of the Act include compulsory directives given by the Ministry of Agriculture and Forestry, recommendations and general guidelines. Recommendations and guidelines are based on research results, long-term empirical data, and current ideas on what constitutes good forest and ecosystem management. Detailed action directives and work procedures are not embodied in the guidelines.

The District Forestry Boards may grant exemptions from the requirement to regenerate a forest if forest clearance is for a forest seed orchard, garden or field, or is used as a building or storage site, industrial or road area, or for some similar purpose; (Section 2-1, Private Forest Act ).

Discretionary authority for state forests is divided between parliament, the Ministry of Agriculture and Forestry, and Forest and Park Service officials. Parliament dictates annual revenue, recreation and nature conservation goals in the state budget. Ministry officials further define these goals and the Director-General ensures they are achieved by the Forest and Park Service (Finnish Forest and Park Service, 1993). Field activities are the responsibility of the district offices. Each district has a forest management plan that defines their objectives.

The private land owners make the decisions concerning the cutting and tending of Finland's private forests. Forestry personnel of the district boards will provide information and assistance based on the forest owners goal. However, practical assistance is usually provided by the forest management associations located throughout the country. Silviculture measures, harvesting plans and the related documentation are handled by the forest management associations (J. Heino, pers. comm.).

GERMANY

Federal Republic of Germany

Section 44 of the Federal Forest Act grants the federal Ministry of Food, Agriculture, and Forestry discretionary authority in sections 15 to 40 and section 41a of the federal Act. Sections 15 to 40 regulate the formation and actions of forest associations and section 41a governs forest land inventories. Section 44 gives the federal ministry the right to release additional regulations pertaining to the forest association and inventory sections of the Act.

Baden-Wurttemberg

Each of the three administrative levels have authority over some aspect of the Forest Law. The Chief of the Forest office authorizes decisions regarding the application of the Forest Law regulations. If necessary, the decisions made by the Chief of the Forest Office can be over-ruled by the second administrative level, the Administrative Forest District.

The Ministry of Food, Agriculture, and Forestry is the highest administrative level and has authority over additions or changes to the State Forest Law.

Bavaria

The Bavarian parliament and the law court have discretionary authority for the Forest Law (Brinkmann, pers. comm.). Implementation of the Forest Law is the responsibility of the State Forest Administration and decision making is the responsibility of the Chief of the Forest Office and the Chief of the Administrative Forest District as in the case of Baden-Wurttemberg.

General forest management, including reforestation and clearcutting in protective forests are regulated by rules outlined in the State Forest Law. However, the majority of forest activities in state, community, and private forests are regulated by guidelines (Brinkmann, pers. comm.). The local forest authorities, forest associations and private forest owners are responsible for managing their forest property (Federal Republic of Germany, 1994. p. 13).

NOVA SCOTIA

The [District] Manager, Forest Resources, has discretionary authority to make exemptions or variances to standards and guidelines under certain circumstances. Logging and cutting operations on Crown lands shall be carried out in a good and workmanlike manner that is acceptable to the Manager, Forest Resources or designate (Standard Long Term License Agreement, 1993:13).

ONTARIO

Some provisions allow for the discretionary authority of the Minister within the CFSA. These include provisions that address exception from forest operation prescriptions when the sustainability of the forest is at risk and specific manufacturing exceptions are also possible. Work orders, remedial action and administrative penalties are subject to a determination of the Minister where the sustainability of a Crown forest is at risk. Direction is provided by compliance policy (C. Graham, pers. comm.).

OREGON

The State Forester can grant prior approval to waive or modify forest practice rules for:

research projects;
alternate practices resulting in less environmental impact than prescribed practices;
alternate practices that will improve soil, water quality and fish or wildlife habitat (but other agencies must be consulted).

The State Forester must provide a written explanation of his decision if he is going against Fish & Wildlife or other agency recommendations. Otherwise, the ODF must follow the Board's rules.

The Board can interpret statutes and can vary some requirements such as the number of trees per acre needed to meet reforestation requirements. Small acreages or lands being converted to non-forest uses can be exempted from reforestation requirements.

SWEDEN

Only the National Board of Forestry has the authority to establish, amend or alter the regulations or requirements of the Forestry Act. However, implementation and supervision of the Forestry Act are the responsibility of the County Forestry Boards and the district offices.

In some cases the County Administration Board, a general administrative level separate from the Forestry Board, which is concerned with environmental aspects, must be consulted before a variance is granted. A request for an exemption from a regulation specified in the Forestry Act is taken to the chief of the district forest office. If the district chief does not grant the exemption the forest owner may take the request to the County Forestry Board. Each County Board designates one employee responsible for implementing the Act. This employee is appointed by the County chief. A decision regarding the exemption request is written and signed by the employee implementing the Act. The decision is not valid until it is also signed by the chief of the County Board.

The primary responsibility for forest management lies with the forest land owner. The forest owner chooses the reforestation method, stand tending technique, harvesting system, and necessary nature conservation measures. Except for a few limited subsidies, the forest owner also pays the costs related to these measures.

TASMANIA

The Chief Forest Practices Officer can approve a Timber Harvesting Plan which specifies a practice other than what is specified in the Code. Forestry Tasmania also has an administrative agreement that where it is felt a desirable or better result can be achieved by not complying with a policy statement, the Chief Forest Practices Officer can approve an alternative practice or standard (Wilkinson, pers. comm.).

UNITED KINGDOM

Discretionary Authority in the U.K. is held by the Directors of the Forestry Commission. Woodland Officers (ie Forestry Commission staff) have local, site-specific authority.

U.S. FOREST SERVICE (REGION 6)

Within the limits of the various laws, regulations and contract specifications, Forest Service administrators have some discretionary authority. Legislation such as National Environmental Policy Act limits the discretionary authority of administrators in making decisions about land and resource use.

VICTORIA STATE

On public land, the Secretary of the Department of Conservation and Natural Resources (CNR) has the authority to approve a plan or practice. The Secretary of the CNR may establish or amend prescriptions or Regulations.

Final approval of a Timber Harvesting Plan is the responsibility of the CNR Area Manager. Harvesting timber on private lands falls under the authority responsible for local planning schemes, with the Secretary of the CNR specified as a referral authority.

WASHINGTON

Only DNR can grant exemptions or variances to forest practices legislation: through either an Alternate Plan or conditioning authority. Alternate plans come under Chapter 22-12-040 of the Rules. They provide for practices that depart from specific requirements of the Rules provided that the level of protection to public resources (fish, wildlife, etc.) is equal or greater than that given by the legislation. Alternate plans only apply to Chapters 222-22 through 222-38. So some things, such as classification of forest practices or of waters, use of pesticides with a potential for substantial environmental impact, protection of designated wildlife species and forest practices application procedures, cannot be changed through an alternate plan.

Conditional authority allows DNR officials to exempt landowners from specific requirements (as long as outcomes are judged to be as [or more] acceptable than if the letter of the rules is followed). It also allows them to adopt specific, sometimes stricter requirements, within the bounds of existing Rules.

DNR also has authority to act in any case where material damage to a public resource seems likely. However, there are significant limits on discretionary authority. For example, DNR cannot act to protect wildlife habitat under this mandate. They can act to protect wildlife species and only as long as they can show that there is a risk of material damage.

WESTERN AUSTRALIA

In Western Australia, the Forest Officer has discretionary authority. A Forest Officer is an officer of the Department of Conservation and Land Management, designated as such by the Executive Director. A Forest Officer, upon designation, will be issued with a Certificate of Authority, signed by the Executive Director. This certificate gives the Forest Officer all the responsibilities invested in a Forest Officer as specified in the CALM Act (MOLS, 1990:164). Forest Officers in Charge (F.O.I.C.) may delegate some of their responsibilities to a Forest Representative (MOLS, 1990:166). Regional Managers approve logging prescriptions, and resolve contract problems and issues.