Farmers Journal, Part 1

Dated, April 2016 but still the best explanation on the replanting obligation

Forest owners in Ireland are legally obliged to reforest land after a crop has been removed or destroyed due to disease, fire, windblow or other causes. The replanting obligation is enshrined in the 2014 Forestry Act. It is regarded by the State as vital in protecting and expanding our forest resource, while a number of organisations claim it is an unnecessary interference and acts as a disincentive to achieving a viable afforestation programme.

The replanting requirement is not unique to Ireland, although it is much more detailed than other European countries in relation to the kind of forests the minister will permit following final harvest. It is also specific with regard to the severity of fines should forest owners fail to comply with the act (see panel).

Europe

The UN Food and Agriculture Organisation published “Forest Legislation in Europe” in 2004 outlining how 23 countries approach the obligation to reforest.

Authored by Josephine Bauer, Matleena Kniivilä and Franz Schmithüsen, the report states: “Reforestation is obligatory and some kind of time limit for regeneration is defined in the forest laws of Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Finland, Hungary, Lithuania, Poland, Romania and Sweden.” The Forest Act in Finland “does not prevent forestry land from being adopted for other purposes”.

The authors say that the laws of France, Germany, Slovak Republic and Switzerland “provide for reforestation in a general manner as part of the principle of sustainable forest management and planning.”

They quote the German Forest Act “which constitutes a framework for legislation at state level” and obliges “all forest owners … to reforest or supplement when natural stock regeneration is incomplete in clearfelled forest areas or thinned out forest stands within a reasonable period of time”.

In relation to changing land use in Germany, they say: “If a forest is converted to other use for a specified period, the authorities have to make sure that the area is duly reforested within a reasonable period of time.”

The authors do not mention fines or other penalties, should owners not comply with the various replanting requirements of the 23 European countries surveyed. Incidentally, Ireland was not featured in the report.

Ireland

The Irish Forestry Act 2014 is specific about the need to replant and what kind of forest is required by the Forest Service. The IFA regards the replanting order as “a major deterrent to farmers considering forestry” as outlined by Michael Fleming, IFA farm forestry chair. While the IFA accepts the act, it advises farmers to be extremely cautious and to make themselves aware of the implications of the replanting obligation.

It is not alone in its opposition to the replanting obligation. A number of private forest owners and organisations representing their interests maintain that it is unnecessary. They claim that forest owners have fulfilled their obligations during a normal forest rotation. They maintain that few, if any, would revert to another land use but the statutory presence of the replanting obligation acts as a barrier to future afforestation. This is reflected in the reduction in land values after planting as existing and future forest owners are locked into forestry. This is perceived as a major barrier to afforestation because it restricts land owners to the same crop in perpetuity, which is unique in land-use policy.

The State, on the other hand, claims that the taxpayer has invested heavily in creating the forest resource and this would be jeopardised by the removal of the replanting obligation as would other benefits such as future carbon accounting and timber supply. 

Those who favour the retention of the replanting requirement maintain that it is a fundamental aspect of sustainable forest management, which is vital to Ireland considering our low forest cover.

Over the past 100 years, six forestry acts have been enacted to cover primary forest legislation in Ireland outlining issues such as the function of the minister responsible for forestry, felling licences, forest damage and replanting.

The 1928 Forestry Act was the first act that had the power to control the felling of trees and to attach replanting conditions. The 1946 Forestry Act retained the replanting obligation, while the 2014 act made “further and better provision in relation to forestry, to provide for the development and promotion of forestry in a manner that maximises the economic, environmental and social value of forests within the principles of sustainable forest management” and to confer certain powers on the minister to ensure the act is implemented.

Part four of the act refers to the application for a felling licence and addressed the replanting obligation which follows. It states: “Subject to section 7, where a person wishes to fell or otherwise remove any tree or trees, he or she shall apply to the minister for a licence to do so.”

An application will include particulars of the tree or trees concerned, and such other particulars as may be prescribed by the minister. The licence shall be valid for such period as the minister decides, but shall not exceed 10 years but the minister may extend the duration of the licence for one or more further periods, not exceeding a total of five years.

The minister may at any time attach or vary conditions to any licence granted, including the requirement to:Replant trees, at such places, of such species, in such numbers, of such surface area and density, within such period of time, as may be specified.Protect and maintain the reforested area including the erection of fencing or barriers to prevent trespass by animals, during such period of time as may be specified.Submit a report to the minister with such information as the minister considers appropriate.Submit a forest management plan to the minister and, where such a plan has been approved, in whole or in part, by the minister, to implement the plan as approved.

Offence

Under the act, “a person who fells or otherwise removes one or more trees, or causes or permits one or more trees to be felled or otherwise removed, without a licence, or in contravention of a condition of a licence, shall be guilty of an offence and be liable” to the following penalties:A fine not exceeding €200 for every tree in respect of which the offence was committed (but which total penalty shall not exceed €5,000) or imprisonment for a term not exceeding six months or both; orA fine not exceeding €1,000,000 or imprisonment for a term not exceeding five years or both.

Part 2

The replanting – or reforestation – obligation is not unique to Ireland as discussed in last week’s article. Replanting is a requirement in most EU member states as well as many developed countries, while third world countries that export timber to member states and the US need to show that they practise sustainable forest management, which includes reforestation as covered by the European Timber Regulation (EUTR) and the US Lacey Act .

The replanting obligation is not a major consideration in Europe where forest cover is over 30% of the land area in 25 countries, so forestry is well established and there are relatively few new entrants to forestry.

The objective in Ireland is to increase forest cover to 18% by 2050, which will be achieved by the private sector, mainly farmers. Forestry is a long-term land use and the concept of land staying under one land use in perpetuity is new to Irish farmers and, for some, it is a barrier to planting. As a result, many in the forestry sector favour the removal or modification of the requirement.

IFA farm forestry chair Michael Fleming says the obligation is self-defeating. The permanence of forestry, “particularly the replanting obligation is a barrier to the increased uptake of forestry by farmers,” he maintained.

Donal Whelan, director of the Irish Timber Growers Association (ITGA), sought a change to the obligation during negotiations on the Forestry Act. “The reforestation requirement after felling, acts as a barrier to afforestation and… it should not be mandatory for growers to have to replant when a final crop has been removed,” he says.

John O’Reilly, chief executive of Green Belt, says the replanting obligation acted as a barrier for some farmers who might otherwise plant. He favours flexibility that “would allow a portion of the land to return to another land use after a mature crop was harvested, if requested by the owner”.

The Forest Service argues for the retention of the replanting obligation as outlined in the Forestry Act 2014. “The State has invested heavily in the afforestation programme through payment of grants and premiums and generous tax arrangements,” according to a Department spokesperson. “Not to insist on replanting would result in deforestation and a poor return for the State investment already made. The objective of increasing forest cover and providing a continuous wood supply for industry would not be facilitated by the removal of this condition.”

Paddy Bruton, managing director of Forestry Services, agreed that the removal of the obligation wouldn’t lead to deforestation. “From our experience, I have no doubt that few, if any, farmers with forests would revert to another land use, after final harvest,” he says. “Apart from the high conversion costs, farmers with forests see it as an excellent investment.” 

However, many farmers thinking about planting see the obligation as a barrier and, occasionally, it is even an excuse not to plant. While Bruton acknowledges that removal is unlikely, he agrees that a flexible approach to reforestation would help.

In this regard, the Department spokesperson has not ruled out a degree of flexibility on how the act is interpreted. “ The 2014 Forestry Act allows the minister to set conditions which include the replanting of trees, so there is an element of discretion allowed in relation to this issue,” he maintains. “ It is a matter of policy how this is implemented.”

Because forestry is a long-term investment, a number of forestry companies contacted believed that growers should receive reconstitution grants if their forests are damaged due to natural causes before a commercial crop is harvested, such as applies in plantations damaged by ash dieback.

“Some farmers who had forests destroyed in the 2014 storms, received less for their timber sales than the cost of reforestation,” Bruton says. “These are at a loss not only in replanting but must wait a further two decades before receiving any income.” While a reconstitution grant has not been definitively ruled out, the Department spokesperson says “there is currently no scheme that caters for situations where a forest has suffered windblow damage”.

When asked about changing from forestry to another land use, the spokesperson stated: “All felling licences are assessed on a case-by-case basis, but in general planting of alternative land equivalent in area and quality can be considered taking into consideration the sensitivities of the existing wood and the areas proposed for replanting. 

‘‘Technical approval for afforestation is required for alternative planting sites,” according to the spokesperson. Coillte has availed of this condition when selling land for windfarms and other land uses.

Investment

The average payout by the Department in afforestation grants and premium payments is €10,000/ha in “one of the most supportive range of forestry packages in the world”, which “has a Government commitment to growing the sector,” the spokesperson says.

However, organisations such as the IFA and ITGA argue that the commitment by the private forest owner is far greater as it continues long after the state’s obligation ends at year 15 when final premium payments are made. In addition, the forest owner’s land investment, time and management costs – valued at between €10,000 and €18,000/ha – exceed state funding. They also point out that afforested land devalues because future owners are legally restricted to forestry. 

While flexibility in interpreting the Forestry Act is possible, it is unlikely that the replanting obligation will be removed because of the perceived fear by the Department that if could cause deforestation resulting in disruption to continuity of future timber supply and forecast uncertainty in forest carbon accounting.

While the replanting obligation is enshrined in the Forestry Act 2014, it allows for flexibility. To increase confidence in the current Forestry Programme, the Department could take two modest steps relating to the reforestation requirement:Provide reconstitution grants for replanting land damaged by natural causes before a viable crop has been harvested. Natural causes include windblow, flooding, frost, mammal, insect and fungal damage.Allow a small portion of land to return to other land uses similar to New Zealand where it is acknowledged that minor clearances – less than one hectare – are not considered as deforestation and do not result in Emissions Trading Scheme (ETS) obligations.

Converting land to forest cover is a major partnership by farmers and the State. In the first 15 years of the life of a forest, the total investment by both partners is as high as €30,000/ha. The long-term returns to both and to society are enormous in relation to import substitution, rural job and wealth creation, renewable energy and climate change mitigation.

The investment by the farmer in the forestry programme needs to matched by the State in terms of risk sharing where damage is caused through no fault of either party. If the state insists on the replanting obligation, then it has to share some of the risks especially when losses occur in the pre-commercial phase. The Department cannot have it both ways.

Read part one, The legal requirement to replant after final harvest, here.