Members
Forest Practice Committee
California Board of Forestry
P.O. Box 944246
Sacramento, CA 94244
Re: Proposed Forest Practice Rules to Protect Watersheds with Threatened and Impaired Values and Draft Coho Considerations 1999
Dear Committee Members,
The following comments are submitted on behalf of the Environmental Protection Information Center (EPIC). The "Proposed Forest Practice Rules to Protect Watersheds with Threatened and Impaired Values" (hereinafter "PFPRs") contain intent language that seems to indicate a better recognition of the need to fully protect water quality and aquatic life, but the standards and measures which follow do not reflect nor would they carry out this intent. The best available science clearly indicates that the revisions and additions outlined in the PFPRs are inadequate to protect and restore our beneficial uses of water or prevent further harm to imperiled species and their habitat. As such, the PFPRs fail to comply with the provisions of the federal Endangered Species Act (16 U.S.C. §§ 1531 et. seq.) and Clean Water Act (33 U.S.C. §§ 1251 et. seq.), as well as other relevant state and federal laws.
Our beneficial uses of water have suffered extensive damage from logging operations carried out both prior to and since the adoption of the Forest Practice Rules, and many revisions to the rules necessary to reverse or abate these problems are completely absent from the PFPRs. For example, a key factor in the degradation has been the failure on behalf of the industry and state agencies to acknowledge or adequately address the cumulative impacts and the tragic reality of the physical and biological conditions of most of our watersheds. Despite this fact and countless court rulings that have echoed this concern, measures and standards to improve cumulative impact analysis and establish site-specific information on problems from past, present and future projects on a watershed basis are among the many omissions of the PFPRs. Adoption of the measures proposed in "Coho Considerations 1999" (hereinafter "Coho '99") would help redress these long-standing problems. Therefore, we strongly urge the Forest Practice Committee and the Board to adopt changes to the PFPRs, supported by the best available science, that is necessary to bring them into compliance with applicable laws and regulations. We further urge the Committee and the Board to expedite consideration and approval of Coho '99, the publication of which has been inappropriately delayed. Detailed comments follow.
I. Legal Requirements
A. Federal Endangered Species Act
The primary purpose of the Federal Endangered Species Act (FESA) is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." [16 U.S.C.A. § 1531(b)]. "The terms 'conserve', 'conserving', and 'conservation' mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary..." [§ 1532(3)].
Numerous aquatic and aquatic-dependent species that may be affected by timber operations are listed, or have been proposed for listing, as threatened or endangered under the federal Endangered Species Act (FESA). In fact, many were listed largely due to adverse impacts caused by logging operations authorized under the Forest Practice Rules, including impacts such as increased sedimentation and temperatures and the elimination of pools, large woody debris and other characteristics that add necessary complexity to streams and rivers. By way of example, Central California coastal populations of coho salmon were listed as "threatened" under FESA on October 31, 1996 (61 FR 56138). Southern Oregon/Northern California coastal coho salmon populations were listed as "threatened" on May 7, 1997 (62 FR 24588). Steelhead trout were proposed for listing in the Northern California coastal and Klamath Mountains Province regions on August 9, 1996 (61 FR 41541), and were listed as "threatened" in the Central California and "endangered" in the South-Central California regions on August 18, 1997 (62 FR 43937). On March 9, 1998, Chinook salmon were proposed for listing as "threatened" in the Southern Oregon/Northern California coastal region, and "threatened" (fall-run) and "endangered" (spring-run) in the California Central Valley (63 FR 11481). The Sacramento River winter run was listed as "threatened" on November 5, 1990 (55 FR 46515) and listed as "endangered" on January 4, 1994 (59 FR 440). The California red-legged frog, a riparian-dependent species ranging southward along the coast from Marin County, was listed as "threatened" on June 24, 1996 (61 FR 25813). On June 29, 1995, the U.S. Fish & Wildlife Service found that listing the Southern torrent salamander as "threatened" might be warranted (60 FR 33785), but never completed its status review.
These and other species depend upon aquatic habitat and resources that may be affected by logging in all three California Forest Districts (14 CCR §§ 906-909). The ESA prohibits all activities likely to cause a "take" of threatened or endangered species [16 U.S.C. 1538(a)(1)(B); (C); 50 C.F.R. §17.11(h)]. Congress intended the term "take" to be defined in the "broadest possible manner to include every conceivable way" in which a person could harm or kill fish or wildlife. S. Rep. No. 307, 93rd Cong., 1st Sess. 1, reprinted in 1973 U.S. Code Cong. & Admin. News 2989, 2995. "Take" includes "harm" to a listed species, and the Secretary of the Interior has defined "harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." See 50 C.F.R. § 17.3 (1994) and Babbitt v Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. at 2412-14.
Notwithstanding the fact that Congress declared it unlawful to authorize activities that cause impacts described above, logging under the current Forest Practice Rules causes these effects, and the PFPRs fail to include measures that would prevent further take of listed species. [§ 1538(a)(1)]. Further, the PFPRs do not contain all methods necessary to bring these species to the point that they are no longer faced with becoming endangered or extinct nor would they minimize and mitigate the impacts of taking to the maximum extent practicable. As such, not only would the PFPRs violate section 9 of the FESA, they would be wholly inconsistent with the term "conservation" as it is used in section 4 of the FESA, and would not include the terms required under section 10 of the FESA. [§§ 1532(3), 1538(a)(1), 1533(4)(d), and 1539(a)].
B. Federal Clean Water Act
The objective of the Federal Water Pollution Control Act (commonly known as the Clean Water Act, hereinafter CWA) is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." [33 U.S.C. § 1251(a)]. When Congress enacted this law, it established a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." [§ 1251(a)(1)]. Congress also established a "national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met." [§ 1251(a)(7)].
At the very heart of these goals, policies and objectives lies the CWA's antidegradation policy, which actually predates the CWA and has its roots in the Water Quality Act of 1965 (Pub. L.89-234). The first antidegradation policy statement was released in 1968, and it mandated, in part, that all States include requirements that "any industrial, public or private project or development which would constitute a new source of pollution or an increased source of pollution to high quality waters will be required, as part of the initial project design, to provide the highest and best degree of waste treatment available under existing technology, and, since these are also Federal standards, these waste treatment requirements will be developed cooperatively." This statement also mandated that any industrial, public or private project or development "not interfere with or become injurious to any assigned (beneficial) uses made of, or presently possible in, such waters," which must be protected at all times. The antidegradation policy applies to both point and nonpoint sources.
The federal antidegradation policy of today embodies this language from which the goals and objectives Congress defined in the CWA were born. Under the antidegradation policy, all existing uses, which are recognized as all beneficial uses that humans and all native plants, invertebrates, mammal, bird, and other non-human species have derived from waterbodies since November 28, 1975, be fully maintained and protected. [40 CFR 131.12(a)(1)]. Referred to as the "Tier 1" protection of the antidegradation policy, this is the absolute floor on federal water quality protection requirements and outlines the minimum level of protection that must be afforded to all waters. The Environmental Protection Agency (EPA) interprets this level of protection to mean "Non-aberrational resident species must be protected, even if not prevalent in number or importance. Water quality should be such that it results in no mortality and no significant growth or reproductive impairment of resident species. Any lowering of water quality below this full level of protection is not allowed...An existing aquatic community composed entirely of invertebrates and plants, such as may be found in a pristine alpine tributary stream, should still be protected whether or not such a stream supports a fishery." [Water Quality Standards Handbook: Second Edition, U.S. EPA, August 1994].
The "Tier 2" protection of the antidegradation policy provides additional protection above Tier 1 for those waterbodies that have water quality exceeding that necessary to support the propagation of fish, shellfish and wildlife and recreation in and on the water. [40 CFR 131.12(a)(2)]. These waters cannot be degraded unless there is a full antidegradation review that includes extensive public involvement and which finds it is necessary to degrade the water to accommodate important economical or social development. [Id.]. In allowing such degradation or lowering of water quality to occur, "the state shall assure that there shall be achieved...all cost-effective and reasonable best management practices for nonpoint source control." [Id.]. When a determination is made to degrade water quality in these waters, however, the existing uses, including those that exceed "fishable/swimmable," must be fully protected and may not be degraded in any circumstance.
The highest level of protection required by the antidegradation policy is afforded to "high quality waters (that) constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance." [40 CFR 131.12(a)(3)]. Referred to as "Tier 3" protection, this section states that "water quality shall be maintained and protected" in these waters. [40 CFR 131.12(a)(3)].
The Board of Forestry is responsible for ensuring the Forest Practice Rules are written so that logging operations will be carried out in a manner consistent with the Clean Water Act. The current rules contain measures and standards that do not maintain nor protect the benefits that plants, invertebrates, amphibians, mammals, fish, birds, humans, and others derive from the watersheds in California, and the proposed revisions to these rules would continue to impose these adverse impacts. Until your board adopts and enacts rules which will ensure logging operations will cause "no mortality" of any native species, which these PFPRs fail to do, the Forest Practice Rules, and therefore the Board of Forestry, are in violation of this important federal law. [40 CFR 131.12(a); §§ 33 U.S.C.A. 1251(a), § 1288(b), § 1313].
II. Specific Comments on PFPRs
(recommended deletions appear in boldface-strikethrough, recommended additions are boldface-underlined):
A. Definitions (proposed revisions to 14 CCR 895 and 895.1)
The "saturated soil conditions" definition largely maintains the problematic language of the current rules. The standard relies upon a subjective determination that is extremely difficult to implement, monitor and enforce. During rainy weather, when many streams in forest watersheds are already turbid, "visible" increases in turbidity from site preparation or road and landing surface areas may be impossible to discern and/or open to a significant degree of interpretation on the part of the observer. Furthermore, once such a visible increase is noted, an adverse impact-introduction of sediment into a watercourse, in potential violation of water quality and endangered species laws-has already occurred and cannot be remedied. This definition should be amended to provide a more quantitative yardstick for determining saturated soil conditions. We suggest adding some type of measurement of precipitation that has fallen in a previous 24- or 48-hour period (for example, more than .5 inches) to the definition of saturated soil conditions.
The "stable operating surface" definition is also problematic in that it allows ruts and deformations channeling water for a distance of 50 feet to be considered "stable," when a truly "stable" surface would not channel water.
EPIC supports the "Watercourse or Lake Transition Line" definition.
We generally support the definition of "watersheds with threatened or impaired values." It is important to recognize where timber operations and other activities have already impacted the beneficial uses of water and/or aquatic and riparian species to the point where federal protection has become necessary; special management priorities are appropriate in these areas. Improved management, however, is also necessary to prevent other watersheds not included in this definition from being degraded to the point where they also will be added to this list.
The final clause of subdivision (1) of the definition seems unnecessary and confusing; any water body "specifically excluded from the Section 303(d) list" would on its face not be subject to the terms of this definition. We suggest striking the final clause of this subdivision, beginning with the words "except any portion." Subdivision (3) should also be amended to include species not yet threatened or endangered but known to be in decline or otherwise imperiled by timber operations. We suggest rewriting subdivision (3) as follows:
(3) where populations of anadromous salmonids or populations of other aquatic or riparian-dependent species that are California species of special concern, Board of Forestry sensitive species, or species that are listed, proposed for listing, or candidates for listing as threatened or endangered under the state or Federal Endangered Species Acts are currently supported or can
B. Intent of Watercourse and Lake Protection (proposed revisions to §§ 916, 936 and 956)
EPIC supports the proposed language to assure beneficial uses of water, aquatic life and riparian zones are "fully protected from site-specific and cumulative impacts associated with timber operations." This level of protection is, for the most part, consistent with state and federal laws including FESA and CWA. Other language in the proposed section, however, maintains the subjective standards of the current rules, which often function as loopholes allowing circumvention of the section's stated intent. The use of subjective terms such as "feasible" and "effectively" create confusion and an element of uncertainty regarding the true intent of the section. Phrases like "feasible measures," "effectively achieve compliance," "effectively protected" and "effectively restored" can be interpreted in ways that potentially conflict with "full protection." Indeed, the intent of this section to "fully protect" water quality and aquatic life is best served by rewriting the beginning of the section as follows:
The purpose of this article is to
(a) During and following timber operations, the beneficial uses of water, aquatic and riparian-dependent species, and the functions of riparian zones, soils and vegetation, shall be maintained where they are in good condition,
EPIC generally supports proposed subdivision (b) of this section, but encourages the Board to amend it to directly acknowledge the responsibility for logging operations to comply with all legal requirements, including those set forth in any applicable water quality control plan adopted or approved by the State Water Resources Control Board, the Federal Water Pollution Control Act and the state and federal Endangered Species Acts.
We feel the language in proposed subdivision (c) should be amended as the following: Protecting and restoring aquatic and riparian dependant species, the beneficial functions of riparian zones and the quality and beneficial uses of water shall be the primary
C. Protection of the Beneficial Uses of Water and Riparian Functions (proposed amendments to §§ 916.2, 936.2, and 956.2).
We generally support subdivisions (a) and (b) of this section as amended, with the reservation that the beneficial and restorable uses of water determined by the basin plan and DFG should more clearly constitute minimum standards that can be "further identified and refined" to ensure "full protection" and restoration.
The word "feasible" should be changed to "adequate" in subdivision (c) to prevent further erosion of protective measures in cases where prescribed minimum standards are insufficient.
Subdivision (d) should be stricken in its entirety. Alternative practices of this kind can result in unsupported, unscientific experiments that cause significant resource damage.
D. Protection and Restoration in Watersheds with Threatened or Impaired Values (proposed §§ 916.9, 936.9 and 956.9).
916.9(a): Zero Net Discharge - The proposed rules prescribe "zero net discharge" (ZND) in waterbodies listed under section 303(d) of the CWA and in watersheds that contain or could contain listed fish populations. ZND has been employed in the Mattole River, Bear Creek, Jordan Creek, Elk River, and Freshwater Creek, among other watersheds, and has been highly problematic. With no established method to attain ZND, "sediment budgets" and other calculations for sediment production are often done by foresters who do not have the skill or motivation to do this in a reasonable or accurate way. Sediment budgets that were developed by foresters and geologists hired by logging companies have been approved by CDF in these watersheds even when they failed to account for sediment production produced from many areas, such as road surfaces and runoff, and did not account for potential mass wasting events. Even if ZND was achieved, which is highly questionable, they would be maintaining existing harmful sediment levels at best. These existing sediment levels are at points that cause direct and indirect mortality to native aquatic species, and this method, at best, will maintain a degraded condition. As stated by a CDF Forester regarding Bear Creek, tributary to the Eel River, "The continuing harvest proposals in this degraded watershed are problematic and the Zero Net Discharge approach is not adequate to correct the problems which have become apparent" November 26, 1997, E. Rohl, CDF Forester, Pre-harvest Inspection Report, THP 1-97-463 HUM).
916.9(c): The best available science shows that commercial logging operations and silvicultural prescriptions within a WLPZ are incongruous with the protection, maintenance, and restoration of our beneficial uses of water and with the conservation of species threatened or endangered with extinction as described by law. The PFRS would allow an unjustified amount of logging to occur within riparian areas, and thus do not contain all methods necessary to bring these species to the point that they are no longer faced with becoming endangered or extinct nor would they minimize and mitigate the impacts of taking to the maximum extent practicable. Further, the PFPRs would cause mortality to native species that rely on healthy aquatic ecosystems and otherwise degrade the existing uses of our watersheds and high quality waters. Therefore, these proposed rules fail to comply with the FESA, the CWA, and other state and federal laws.
916.9(e): The minimum width requirement for Class I waters set forward in the PFPRs is utterly inconsistent with state and federal laws as well as the intent of the PFPRs. Set at 150 feet, this distance would fail to protect anadromous fish habitat and other beneficial uses of water, is unsubstantiated by the best available science, and is completely unfounded in reality. The National Marine Fisheries Service believes a minimum riparian buffer width that reaches to the top of the inner gorge, to the outer edge of the 100-year floodplain, to the outer edge of riparian vegetation, or is equal to the height of two site potential trees or 300 feet slope distance, whichever is greatest, is necessary to comply with the FESA on public land. Watercourses that flow through public land are often upstream from land that is subjected to logging under the Forest Practice Rules, and geological and biological conditions are such that buffer widths of at least this size are necessary throughout a watershed with threatened or impaired values.
916.9(f): This subsection is also imprudent and void of scientific merit. "Any required plan involving timber operations within the WLPZ" is a plan that does not comply with state and federal laws, as timber operations within this area would further degrade the quality of our waters and the beneficial uses they provide. This language should be changed to reflect the best available science and reality to the following:
(f) All THPs shall contain the following information:
(1) A clear and enforceable specification that no logging operations will occur within the minimum WLPZ width for Class I watercourses that is required pursuant to subsection (e).
(2) no comment
(3) A map depicting the location and a description of all existing and proposed permanent crossings of Class I waters logging roads and clear specification regarding how these crossings are to be modified, used, and treated to minimize risks, giving special attention to allowing fish to pass both upstream and downstream during all life stages.
(4) no comment
916.9 (g): The PFPRs fail to include standards for inner gorges in Class I watercourses that will prevent increases in erosion and mass wasting events. These proposed rules would allow selection logging within the first 300 feet of inner gorges on Class I's or until the first break-in-slope, whichever is less. Retention requirements for selection logging are only 75 square feet basal area, and this is not adequate to prevent adverse effects on slope stability within inner gorges such as loss of root strength, reduction in rainfall interception, increases in pore water pressures and groundwater tables, increased blow-down of retention trees, etc. Clearcutting or other intensive silviculture methods could be carried out within the inner gorges, including those with slopes greater than 55%, above the first break in slope or above 300 feet, and this will place further risks upon our beneficial uses of water. To fully protect salmonid habitat and other beneficial uses of watersheds, no logging operations can be permitted in inner gorge slopes of any Class I watercourse. This subsection of the PFPRs is contrary and conflicting with the language it sets forward in 916(b)(1) and (2), as well as the intent in 916 and state and federal laws.
Inner gorges outside of Class I's: There are no standards prescribed for inner gorges within Class II and Class III watercourses unless they are on slopes greater than 65%, and this will increase erosion and landslides within these areas. The PFPRs should be amended to restrict all logging operations, including all road and skid trail construction, falling, yarding, hauling, and site preparation, within all inner gorges of Class I, Class II and Class III watercourses.
916.9(k): As stated above, logging within a Class I WLPZ area is inconsistent with state and federal laws. This language must be stricken in its entirety and replaced with standards that will protect, maintain and restore all beneficial uses of our watersheds and conserve imperiled species to achieve compliance with the CWA, federal and state ESAs, and other relevant laws.
916.9(l): Like the minimum WLPZ width for Class I waters that is contained in the PFPRs, those which they would establish for Class II waters are woefully inadequate to protect salmonid habitat and other beneficial uses and are not of credible scientific merit. This language should be changed to reflect current stream conditions and the best available information. We believe that riparian buffers of similar width as those outlined in FEMAT are the absolute minimum that can be afforded to Class II waters for the spirit and intent of the PFPRs, the state and federal ESAs, the CWA and other state and federal laws to be met.
916.9(m): We believe the logging operations that would be allowed under the PFPRs would further damage existing uses and harm the feeding, breeding and sheltering habitat of species listed or proposed for listing as threatened or endangered with extinction. As with the preceding subsection, we believe the measures afforded to Class II waters on public land are the absolute minimum that are necessary to fully protect all beneficial uses of the state's waters.
916.9(n): Despite the fact that logging within Class III watercourses causes extensive damage to the beneficial uses and that this has been evidenced by tragic mass wasting events that have occurred from logging in these areas, these PFPRs fail to acknowledge such or prescribe adequate measures to prevent this harm from reoccurring. By only establishing a 30-to-50 foot wide EEZ or ELZ and only retaining hardwoods within this small area, these rules will allow logging operations that increase the frequency and size of landslides and the amount of sediment that reaches watercourses from landslides and other erosion sources. The current rules and the PFPRs do not comply with state and federal laws in regards to Class III watercourses, including the CWA and FESA, and the language of this subsection must be changed so that protective measures are afforded to them in a manner which is equal or more protective than those set forward by FEMAT. We believe a full WLPZ with no logging operations, no equipment and no impacts from site preparation within this zone is necessary to provide for the protection, maintenance and restoration of our beneficial uses and the conservation of imperiled species.
916.9(o): For reasons already stated, we believe this subsection should be amended in the following manner:
(o) Recruitment of large woody debris for aquatic habitat shall be ensured by retaining all trees within the WLPZ of all Class I, II and III watercourses.
916.9(p): Similar to the manner in which the PFPRs ignore the real evidence showing logging in Class III watercourses causes severely deleterious effects, the PFPRs ignore the evidence that shows logging during the winter season causes undue harm to our public trust resources. Logging during this time should be allowed only during extremely limited circumstances, but instead the PFPRs would allow winter logging to be the rule. In biological opinions issued by NMFS, they stated that they do not condone logging operations during this time due to the impacts it presents to coho salmon and other anadromous fish populations. This subsection of the PFPRs continues to fail in ensuring that all necessary measures to conserve these species will be taken.
916.9(t): This subsection of the PFPRs would require the forester to identify "active erosion sites," but only those which are "linked to past management activities in the logging area." This is contrary to the Technical Rule Addendum No. 2, which requires that all problems within the assessment area caused by past projects be located and described. Additionally, given the industry's amazing ability to cast doubt on the "link" between logging operations and erosion, the way this is phrased could leave a gaping loophole in measures to protect beneficial uses of water.
916.9(u): Many problems have been caused due to the fact that the current rules only require that permanent and seasonal roads be maintained for three years. The PFPRs do not address this fact, and would continue to impose this problem on our beneficial uses.
916.9(x): We encourage the board to strike the "effectively" where it is used, and to replace the terms "may be approved" with "shall be incorporated into the plan prior to its approval."
E. Road and Landings in Watersheds with Threatened or Impaired Values [proposed adoption of 923.9, 943.9, 963.9]
923.9(a): The proposed rules include language that would put a limit on road density, but only calls for "no net increase" in such. Many watersheds already have extremely high road densities, up to 5 and more miles per square mile, not including skid trails. Also, to achieve "no net increase," the proposed rules would require that an equal distance of existing roads be abandoned or that other mitigation measures be developed. Not only will this allow for continued road densities that are deleterious to our beneficial uses, the PFPRs do not include a change in language for "abandoned." As currently written the standards for such do not include measures that leave a road in a fully stabilized manner. We feel that to be consistent with the intent of the PFPRs and state and federal laws, this subsection must be changed to state that road densities shall be no greater than 3 miles per square mile and that no new road construction may occur in watersheds that have current road densities that are greater than this amount. We further believe it is necessary to amend this subsection to require that all roads to be abandoned be decommissioned, meaning that all elements of a road that divert natural drainage or stream flows must be removed.
EPIC has no further comments on this section at this time.
III. Coho Considerations 1999
The other main rules package, "Coho '99", is complementary to the "Agency" package and directly addresses the cumulative impacts process, the development of sound information about habitat and upslope conditions that affect that habitat, providing a basis for public participation and watershed assessments. This package evolved from an Emergency Petition by Humboldt County residents to the Board of Forestry in November of 1997. The Emergency Petition, which was of course denied by the Board, did lead to this rules package which ran the gauntlet of Board Committees for over a year, with key provisions surviving intact.
The "Coho '99" package would require a process by which foresters would document conditions of watercourse and riparian habitat and factors that impact that habitat along with corrective measures. Foresters and supervised designees would be required to be trained in the required skills. Habitat typing of "all current and restorable habitat" which includes absence and presence of the various salmonid species would be a part of the required tasks.
The "Coho '99" package corrects current loopholes in the evaluation and response to cumulative impacts such as: requiring identification, location and description of environmental problems in the Watershed Assessment Area (WAA); requiring a broader consultation in the determination of cumulative impacts; requiring cumulative impacts to be evaluated as the combination of impacts with reduction to insignificance of those impacts based on that combination (not just an individual THP); and requiring actual measurements be made if necessary to evaluate cumulative impacts. The current rules state that "No actual measurements are intended.", which the Scientific Review Panel emphasized was a major reason that current cumulative impacts evaluation and response was not credible.
There are several reasons why the "Coho '99" package is an essential part of any 'first brick' in substantive improvement in forest practices that focuses on protection and recovery of water, soil, and fisheries resources. It requires disclosure of watershed conditions, including: water temperature; habitat conditions; presence of salmon & steelhead; and impacts of past, present, and future projects. It requires adequate documentation of those conditions and corrective measures. Through this disclosure and documentation it provides for effective public participation in the process of protecting and recovering watersheds and fisheries. However, one might view the strengths and weaknesses of the "Agency" package, the "Agency" package is based on 'performance standards' which rely almost entirely on adequate in-field agency review and enforcement, and which basically excludes the public and non-field agency participation and review. This exclusion is one of the main reasons that watershed and fisheries conditions have so deteriorated, resulting in lost resources, lost jobs, lost futures, and lost hopes. This exclusion must end.
IV. Conclusion
The waters of California can not afford further degradation from logging operations governed under the Forest Practice Rules. We have come to a critical moment in time when only decisive action and significant changes in logging practices will prevent widespread extirpation of many of California's native species. Logging under the Forest Practice Rules has already caused many of our native species to become extirpated throughout much of their natural range, including the coho salmon, chinook salmon, steelhead, green sturgeon, northwestern pond turtle, red-legged frog, tailed frog, southern torrent salamander, and pacific giant salamander. Such effects are in violation of state and federal law, and as the proposed revisions to the Forest Practice Rules would fail to abate these effects, these revisions are also inconsistent with the law.
Private property rights have become construed so that corporations now feel they can do as they please on land they "own", no matter the cost it may have on public trust resources. This varies greatly from the very seeds from which our nation and state grew, and it is deep-rooted within our history that waters and all uses they support belong to the state for the people and by the people. Perhaps this is best told by the following, which was written by the California Supreme Court in 1884:
"As we have already said, the rights of the people in the navigable rivers of the State are paramount and controlling. The State holds the absolute right to all navigable waters and the soils under them, subject, of course, to any rights in them which may have been surrendered to the general Government. (Martin v. Wade, 13 Pet. 410.) The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it; these are inalienable. Any grant of the soil, therefore, would be subject to the paramount rights of the people to the use of the highway. And such was the doctrine of the common law. "The jus privatum," says Lord Hale, in De Jure Maris, p. 22, "must not prejudice the jus publicum, wherewith public rivers and arms of the sea are affected to public use." It is, therefore, beyond the power of legislatures to destroy or abridge such rights, or to authorize their impairment.
As to the claim of right derived from prescription and the statute of limitations, it is sufficient to say that a right to continue a public nuisance cannot be acquired by prescription. (Pettis v. Johnson, 56 Ind. 139; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Wright & Rice v. Moore, 38 Ala. 593; People v. Cunningham & Harris, 1 Denio, 524; Mills v. Hall & Richards, 9 Wend. 315.) Nor can it be legalized by lapse of time. (§ 3490, C. C.) Against it, however long continued, the State is bound to protect the people; and for that purpose the attorney general, as the law officer of the State, has the power to institute a proceeding in equity in the name of the people, to compel the discontinuance of the acts which constitute the nuisance. (County of Sacramento v. The Central P. R. R. Co., X. Pac. C. L. J. 27; 61 Cal. 250; People v. Stratton, 25 Cal. 242; Yolo County v. Sacramento, 36 Cal. 193" [The People of the State of California v Gold run Ditch and Mining Company, 66 Cal. 138 No. 8,996, November 25, 1884.].
The issues at hand in this case involved hydraulic mining and were actually quite analogous to those involved with logging today. Proceeding the statement above, the Supreme Court stated in their ruling that:
"...Undoubtedly, the fact must be recognized, that in the mining regions of the State, the custom of making use of the waters of streams as outlets for mining debris has prevailed for many years; and as a custom it may be conceded to have been founded in necessity; for without it, hydraulic mining could not have been economically operated. In that custom the people of the State have silently acquiesced, and upon the strength of it mining operations, involving the investment and expenditure of large capital, have grown into a legitimate business, entitled equally with all other business pursuits in the State to the protection of the law. But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners. (§§ 3479, 3514, C. C.; 731, C. C. P.)." [Id.][emphasis added]
The state agencies that developed the rule package did so as though logging corporations, not the people, have inalienable rights over the waters. These proposed rules draw the same distinction between private and federal land that the current rules include, and fail to recognize that all those conducting logging operations must do so in a manner that does not harm those values that are held in the public trust. "Higher risk management" that is conducted under the Forest Practice Rules is illegal and has caused great harm to our beneficial uses; the proposed rules do not change this fact.
On behalf of the staff and members of EPIC, we strongly encourage this Board to make wise use of its authority to amend the PFPRs in such a manner that the needs of salmon and other beneficial uses of water will be met as well as the spirit and intent of laws governing these public trust resources.
For all aquatic life,
Cynthia Elkins
Kevin Bundy
