EPIC Secures Victory for Clean Water in Elk River

By
Wednesday, November 16th, 2016

AElk River flowing over road. Photo courtesy of Elk River Residents Associationnother EPIC victory in court! A Sonoma County Superior Court judge sided with clean water and good government last week in dismissing a lawsuit brought by Humboldt Redwood Company’s (HRC) lawsuit against the North Coast Regional Water Quality Control Board over a disputed Timber Harvest Plan (THP) water quality permit enrollment in the heavily impacted Elk River watershed. EPIC and the Pacific Coast Federation of Fishermen’s Association intervened in the lawsuit on behalf of the Regional Water Board in order to support the ability of the Board to exercise its independent authority under the California Porter-Cologne Water Quality Control Act to restrict, limit, or prohibit discharges of sediment pollution into the heavily impaired Elk River watershed. The Sonoma County Superior Court ruled in favor for EPIC and the Regional Board on all counts and dismissed the case.

HRC filed suit in Sonoma County Superior Court against the Regional Water Board in August 2015 seeking to compel the Regional Board to authorize discharges of sediment pollution into the Elk River watershed in conjunction with timber operations. The Regional Board declined enrollment of the THP in the current waste discharge permitting program at the time it was requested, citing significant sedimentation from timber operations currently impairing the Elk River watershed, and the ongoing efforts of the Regional Water Board to adopt a new Total Maximum Daily Load (TMDL) and new Watershed-Wide Waste Discharge Requirements (WWDR) for HRC timber operations in the upper watershed.

The Sonoma County Superior Court found that the Regional Board’s decision was not a denial of enrollment and coverage of sediment discharges in conjunction with timber operations on Unit 1 of the McCloud-Shaw THP as HRC contended; what’s more, the Court found that even to the extent the decision of the Regional Board could be construed as a denial, that the weight of the evidence in the record pertaining to pre-existing sediment impairments, and the risk of further discharges of sediment pollution that would further threaten water quality and public health and safety would have supported a denial of coverage for further sediment pollution discharges.

HRC’s lawsuit against the Regional Board is set against the backdrop of ongoing efforts by the Regional Board to adopt a long-overdue TMDL Action Plan for Upper Elk River aimed at constraining sediment pollution into the river system. As found by a recent technical sediment analysis (Tetra Tech 2015), the Upper Elk River watershed is overwhelmed with logging-related sediment pollution, to the point that the river now has a “zero assimilative capacity,” i.e., the river system cannot intake further anthropogenic sediment discharge inputs. In May 2016, the Regional Water Board at long-last adopted a TMDL Action Plan to constrain and remediate the sediment pollution problem in Upper Elk River, and established a zero load allocation target—in other words, the objective is to prohibit any new sediment pollution discharges while efforts are undertaken to remediate and restore channel capacity in Upper Elk River.

The Regional Board is also working to adopt a new, and more restrictive WWDR permit for HRC timber operations in Upper Elk River in light of the findings of the technical sediment analysis and new TMDL target objectives. The newly proposed WWDRs would include greater restrictions on wet-weather road use, and propose enhanced Riparian Management Zone buffers and protection measures above and beyond the prescriptions currently in place for the Upper Elk River watershed.

The Regional Water Board will hold a hearing on Wednesday, November 30, at City Hall in Eureka, to consider adopting the new WWDR framework and constraints for HRC timber operations in the Upper Elk River watershed.

EPIC and PCFFA intervention into the HRC lawsuit against the Regional Water Board has served to bolster the independent authority of the Board to regulate, constrain, or prohibit further sediment pollution discharges resulting from HRC timber operations in Upper Elk River. EPIC will continue to advocate for clean-up and remediation of the impacted condition in Upper Elk River, and for stiff constraints on further sediment pollution discharges in conjunction with timber operations in the upper watershed.