Just today, one of my respected colleagues, Heather Brewer, a municipal forester in the City of Georgetown, turned me on to a bill that is being introduced by Republican house member Lois Kolkhorst. Kolkhorst is from Brenham, TX. Her proposal aims to put maximum limits on tree mitigation that a government entity can require. And, the proposal prevents a municipality from enforcing tree protection in extra-territorial jurisdictions. As much as we all hate complicated law, there is a need for it. Expecting us to all get along without rules is overly optimistic. So, I do think some variety of state regulation could be useful if the language is well written. However, this proposal raises an eyebrow on me for many reasons. In reading over it, the proposal is not: well thought out, comprehensive, or much concerned about protecting trees. Let me explain.
There is one specific piece of language that I think will result in the complete unravel of tree protection. Section 154.003(b)(3) says that a mitigation fee may be used “… only for the purpose of tree planting and other related activities.” What is related to tree planting? Irrigation installation, laying sod, ficus tree in your house? This is a loop hole that will completely undo tree protection standards.
The bill is not well thought out. It doesn’t address shared trees, it doesn’t address variations in forest make-up in different regions and it doesn’t account for local differences in economies. The house member’s bill spells out that landowners own their trees and have the right to cut them down. Ok, but what about when trees cross property lines? Current case law says that trees crossing property lines are shared trees. Does this new proposal mean that my neighbor has the right to cut down our shared tree? Also, the proposal only protects trees 10″ and larger. In difficult growing regions like hill-sides in the hill country, most trees won’t be protected under this requirement. The minimum protected size needs to be reduces to 6″. Lastly on the poorly thought out list is differences in economy between communities throughout the state. The draft bill sets a maximum mitigation rate of $100 per inch for everybody. That may work in some places, but in Austin, I can tell you from experience, developers will be writing checks all day long for $100/inch to mow down trees. Especially, if they know they have a state born workaround to ignore tree protection options during the design and planning phases. I know from experience the main thing developers don’t want to do is take the time to think about options for salvaging trees. They only want to think about their beautiful buildings. With a state given right, developers will take the approach of mowing down trees first, and figure out tree mitigation later.
Lets look at the comprehensive problems now. I could write about this topic endlessly, but I’ll limit myself to these four points: replacement survival, tree preservation standards, available root growing area, and 100 year old trees can’t be replaced.
- Replacement Survival – A considerable percentage of newly planted trees don’t survive transplant. ESPECIALLY IN CONSTRUCTION SCENARIOS WHERE PLANTING SERVICE GOES TO THE LOWEST BIDDER. Under this proposal, a land owner could intentionally plant junk-trees and let them die. Texas really needs some good nursery legislation, like Florida, to grade the quality of nursery trees so we can require that good trees are planted. The language for a good draft would need to include some liability for replacing dead new-plants within a 3 – 5 year window. The Texas Chapter of the International Society of Arboriculture is currently considering a tree grading system to make available for those who care enough about trees to use it voluntarily. I think the State should consider adopting as legislation what the ISAT is working on.
- Protection Standards for Preserved Trees – The current draft has only one line that discusses tree preservation. It says, “…the damaging of a tree in a way that will cause the death of the tree on or before the first anniversary of the date of the damage…” In reality, most trees can survive lethal damage for 3-4 years; this is a well known fact in the arborist community. One year is simple not enough. Beyond that, I’d say that using time as a standard is a very difficult thing to enforce or wordsmith properly. I think the next point below is the best solution for tree protection standards.
- Preserving Available Root Growing Area – This is what tree preservation is really all about. This technique is great for a couple reasons. First, simply because trees need a place to grow if they are to survive. Second, this forces tree preservation considerations during the planning phase of a construction project. So, really, lets be serious about this, the only way reasonable tree protection can ever happen is if we treat trees as infrastructure and plan around them from the beginning. There are many great ways to measure critical root zone areas. These details need to be fleshed out and used in place of the current language that only looks at one year of survival.
- 100 Year Old Trees Can’t Be Replaced – We need some distinction between the old heritage trees that have been around since the revolutionary days vs. Arizona Ash trees that grew to a large size in 20 years. Those old heritage trees cannot be brought back into a new urbanized area. New trees in artificial landscapes simply don’t grow back the same. Those trees need to be preserved. I think this is more of an emotional thing compared to my previous points. Quite simply, we’re talking about removing a natural resource that we cannot get back. Maybe we can get back a similar replacement with 50 years time. But, trees that grew up under mother natures wing are completely different from the trees we grow in landscapes today. As a people, we need to hold on to our heritage.
Ultimately, any state legislation that gets passed needs to have a balance between protecting property owner rights and protecting the canopy coverage within our great state of Texas (yes, I mean PROTECTING THE TREES). And, it needs to take into account that trees contribute benefits to people beyond their direct owners. Ask Dallas or Houston about poor tree protection ordinances. Those communities are just recently getting some progress on undoing their concrete jungles and engaging some useful tree protection standards. This proposal by Kolkhorst would undo tree protection guidelines in every major metropolitan community in the state. There is one specific piece of language that I think will result in the complete unravel of tree protection. Section 154.003(b)(3) says that a mitigation fee may be used “… only for the purpose of tree planting and other related activities.” What is related to tree planting? Irrigation installation, laying sod, ficus tree in your house? This is a loop hole that will completely undo tree protection standards. That particular sentence needs to include AND exclude some very specific things.
In reading over the document, it is completely obvious to me that no arborist was consulted with. By arborist, I mean a professional, qualified arborist with experience in construction site tree protection. This is the most disappointing aspect. I sincerely hope that Republican House Member Lois Kolkhorst finds appreciation for preserving trees and consults with some knowledgeable professionals. This proposal would be a tragedy to Texas’ urban forest if passed as is.