Introduction
The results of this analysis determined that San Jose Water Company owns more than 2500 acres of "Timberland" even by the most conservative possible definition. In order to apply for a Nonindustrial Timber Management Plan, San Jose Water Company must qualify as a "nonindustrial tree farmer".
Below is a quote, detailing some of the legal issues, which was included in the Pre-Harvest Inspection Report prepared by the County of Santa Clara, page 2:
The Forest Practice Act ("FPA") requires, subject to certain exceptions, that timberland owners obtain CDF approval of a "Timber Harvest Plan" ("THP") before commencing timber operations. Public Resource Code 4581. An exception to this requirement exists where the timberland owners obtains CDF approval of a "Nonindustrial Timber Management Plan" ("NTMP") instead of a THP.
The primary features that distinguish an NTMP from a THP are (1) the NTMP never expires while a THP is valid for only 3 years; (2) timber operations pursuant to an approved NTMP must comply only with the NTMP itself, they need not comply with new forest practice rules adopted after it is approved; and (3) the NTMP is intended for use by small timberland owners, referred to as "nonindustrial tree farmers" in the FPA.
The FPA defines "nonindustrial tree farmer" as "an owner of timberland with less than 2500 acres who has an approved nonindustrial management plan and is not primarily engaged in the manufacture of forest products." Public Resources Code 4593.2.(a). The FPA defines "timberland" as "land... which is available for, and capable of, growing a crop of trees of any commercial species used to produce lumber and other forest products....." The Forest Practice Rules ("FPR") identify redwood and Douglas fir (i.e., the primary species found on San Jose Water Company's land) as "commercial species." 14 CCR 895.1.
While the proposed NTMP covers 1002 acres, San Jose Water Company owns over 5000 acres of land in the vicinity of the NTMP. This fact alone renders the company ineligible for approval of an NTMP because, as an owner of more than 2500 acres of land, it cannot be considered a "nonindustrial tree farmer." While CDF apparently interprets the statute as referring to 2500 acres of "timberland," that interpretation is not warranted because the Legislature's intent is to restrict NTMP use to small landowners, i.e., owners of less than 2500 acres.
What is the legal definition of Timberland?
While this issue may be up for legal debate, the following text was taken from the State Code (PRC 4526):
Timberland means land....which is available for, and capable of, growing a crop of trees of any commercial species used to produce lumber and other forest products, including Christmas trees. Commercial species shall be determined by the board on a district basis after consultation with the district committees and others.
From the Forest Practice Rules:
895.1 Definitions: Commercial Species (For the Coast Forest District:) means those species found in group A and those in group B that are found on lands where the species in Group A are now growing naturally or have grown naturally in the recorded past.
Group A includes: Coast Redwood, Douglas Fir, Monterey Pine
Group B includes: Tanoak, Red Alder, White Alder, Eucalyptus, Pacific Madrone, Ponderosa Pine, Golden Chinquapin
What is our operating definition of “timberland” for this analysis?
In keeping with the comments quoted above from the County of Santa Clara, there may be a more liberal definition of Timberland per the intentions of the legislature. However, in order to steer clear of the legal wrangling, we would like to use the working definition of "Timberland" used by the California Department of Forestry. First, this should include at least lands that have recently grown Coast Redwood or Douglas Fir (Monterey Pine is insignificant in this area). Secondly, this should also include areas that may be dominated by Tanoak, Red Alder, White Alder, Eucalyptus, or Pacific Madrone (Ponderosa Pine and Golden Chinquapin being insignificant) but have individuals of Coast Redwood or Douglas Fir present or in the coming up understory.
Without ground-truthing, determining which areas may have had Coast Redwoods and Douglas-fir in recent history would be very difficult, as would determining areas that are dominated by hardwoods but may have young conifers in the understory. Thus, we first asked the question: How much land owned by SJWC has obvious individuals of Coast Redwood or Douglas-fir, as viewed through aerial photographs? From this baseline data we made several estimates of total acreage of "Timberland".