VIA FACSIMILE AND US MAIL


February 18, 2000

Federal Emergency Management Agency
Region IX
Building 105
The Presidio of San Francisco, CA 94129

RE: "Draft Environmental Assessment: Restoration of the Northwestern Pacific Railroad, Humboldt, Trinity and Mendocino Counties"

To Whom It May Concern:

The following comments are submitted on behalf of the Environmental Protection Information Center (EPIC), a non-profit, grassroots conservation organization located in Garberville, California. Our hundreds of members in Northern California include a substantial number of residents of the greater Eel River watershed. Our Board of Directors, staff and membership are keenly interested in the recovery of salmon and steelhead as well as the myriad of other rare creatures native to this region, and we take a strong interest in preserving the water quality and forest productivity of this unique area. We believe the proposed project would greatly contribute to the severe sedimentation, temperature and other pollution problems that currently plague the Eel River, and urge FEMA to best serve the public interest and our public trust resources by selecting the no-action alternative for this project.

The Northwestern Pacific Railroad (NWP) has been an intermittent feature of life here in Humboldt County for nearly a century. In contrast, intense winter storms, geologic instability, and rapid erosion have defined the area for millennia. The history of the NWP burgeons with tales of landslides, flooding, trestle and tunnel fires, derailments, toxic spills, death and injury, scandal and bankruptcy. The water, fish and wildlife of the Eel River have borne the brunt of this checkered history, and continue to do so; broken boxcars litter the otherwise scenic riverbed, reminders of disasters past and harbingers of inevitable future tragedies should this ill-starred line be reopened.

This railroad was illogically placed in one of the most geologically unstable areas in the world, and its construction "was the beginning of the destruction of this river." The History of Alderpoint, Ray Mathison, 1998. Its construction was "also the beginning of the end of the big salmon runs. By the time this railroad was completed in 1914, a tremendous amount of material had been pushed and blown into the Eel River. A lot of this Eel River canyon had big landslides. When the railroad was built this started the landslides moving. These also were shoved into the river. Then they blew out the falls near Kikawaka. Also, they blew out the big rocks that formed the toe on the Kikawaka slide. This, over a period of years, let a lot of a mountain slide into the river...It was not many years before the river started to fill in and it wasn't many years before the ships could no longer run up river as far as Scotia." Id.

FEMA should not fund this project for a great number of reasons, a primary one being that the applicant has not demonstrated that it has the necessary funds to complete the project, bring the railroad into operability and then keep it operational. By approving funding that may allow for NCRA to begin but not complete the project, a higher risk of greater environmental damage is posed because a partly completed project would pose additional severe environmental threats. As is a common theme throughout this draft EA, however, this problem is not explored or examined by this document.

We respectfully request the preparation of a full Environmental Impact Statement (EIS) on this proposed project. FEMA's regulations for implementation of the National Environmental Policy Act (NEPA) clearly call for such a document. Furthermore, an EIS would also allow for careful analysis of alternatives to once again repairing the railroad. In our view, the environmental and economic costs clearly outweigh the benefits of allowing a handful of shippers to move timber and gravel along its slow and winding route, at least until the next flood, landslide or fire closes the line again. A "Remove/Restore to Natural Condition" alternative, describing a program of abandonment, cleanup and restoration, should be carefully considered as part of any proposed project; the proper forum for such consideration is a full EIS.

The current Environmental Assessment (EA) is woefully inadequate to support a Finding of No Significant Impact. Indeed, the EA implicitly and explicitly acknowledges potential significant impacts to water quality, fisheries, endangered species, cultural resources and other values. Incredibly, FEMA and the North Coast Railroad Authority are already deliberately harassing threatened birds in the Eel River canyon, despite the fact that the NEPA process is not yet complete and the impacts from the proposed project have not yet been authorized. EPIC notified FEMA via certified mail on February 8, 2000, that this "noise disturbance" component of the project is being conducted in clear violation of 40 C.F.R. §1506.1 (a) (1) and (2).

Detailed comments on these and other issues related to the project follow.

Regulations Require Preparation of an EIS

Regulations adopted by FEMA for the purpose of implementing NEPA set forth considerations that the Regional Director must take into account in determining whether or not to prepare an EIS. "In some cases, it will be readily apparent that a proposed action will have a significant impact on the environment. In that event, the Regional Director will... submit the notice of preparation of an environmental impact statement to the Environmental Officer." 44 C.F.R. §10.8 (b) (1). It would seem obvious that removing thousands of toxic railroad ties, reshaping and regrading a railroad bed, spraying herbicides along more than 100 miles of track, and disturbing nesting birds would constitute a "readily apparent" set of significant impacts.

Nonetheless, the regulations offer even more specific guidance. An EIS would "normally" be required "If an action will affect, in large measure, wildlife populations and their habitats, important natural resources, floodplains, wetlands, estuaries, beaches, dunes, unstable soils, steep slopes, aquifer recharge areas, or delicate or rare ecosystems, including endangered species." 44 C.F.R. §10.8 (b) (2) (v). Even a cursory glance at the proposed project reveals that at least nine of these twelve criteria apply, clearly tipping the balance in favor of preparing an EIS.

Finally, an EIS should be prepared "If an action is one of several actions underway or planned for an area and the cumulative impact of these projects is considered significant in terms of the above criteria." 44 C.F.R. §10.8 (b) (2) (vii). The EA acknowledges that FEMA has funded repairs to the southern portion of the NWP, including areas in the Eel River watershed. The required examination of the cumulative impacts of these projects warrants preparation of an EIS, as does the overall history of the NWP. It is highly likely that further disasters will impact this railroad, that the North Coast Railroad Authority will again apply to FEMA for disaster relief funding, and that this same type of project will once again be undertaken in the area if the current project is approved. Given the railroad's history, such projects are clearly "reasonably foreseeable future actions" within the meaning of 40 C.F.R. §1508.7.

As discussed throughout our comments below, an EIS is warranted and required for this project.

EA Fails to Make Required Findings

FEMA's regulations require an EA to be, among other things, "a concise public document to determine whether to prepare an environmental impact statement." 44 C.F.R. §10.9 (b). An EA is also required to discuss its "Conclusion of whether to prepare an environmental impact statement." 44 C.F.R. §10.9 (b) (6). Guidance for this conclusion is also set forth in the regulations: "The Regional Director shall prepare and environmental impact statement for all major agency actions significantly affecting the quality of the human environment. The test of what is a 'significant' enough impact to require an EIS is found in the CEQ regulations at 40 CFR 1508.27." 44 C.F.R. §10.9 (d).

This "test" includes numerous relevant criteria that must be considered in evaluating significance:

- "Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial." 40 CFR §1508.27 (b) (1).

- "Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas." 40 CFR §1508.27 (b) (3).

- "The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration." 40 CFR §1508.27 (b) (6).

- "Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment." 40 CFR §1508.27 (b) (7).

- "The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973." 40 CFR §1508.27 (b) (9).

Again, one would expect the EA to easily reach the conclusion that the project may have significant environmental impacts and that preparation of an EIS is warranted. Instead, the EA asserts that "None of the alternatives is expected to result in substantial adverse impacts to the environment." EA 4-1; emphasis added. The EA is required to make a finding as to whether environmental impacts are significant in order to conclude whether or not to prepare an EIS. "Substantial" is not an equivalent term of art under NEPA, is not defined by either FEMA's or CEQ's regulations, and cannot be used to reach a conclusion as to whether an EIS should be prepared. Indeed, the analysis of alternatives following this assertion clearly indicates that "significant" impacts within the meaning of 40 CFR §1508.27 are in fact expected to result from implementation of the project.

Repetitive Damage Is Likely To Occur, Making the Railroad Ineligible for FEMA Funds

With up to 115 inches of rainfall each year, phenomenally unstable geology and its infamous seismic activity, the Eel River watershed is entirely unsuitable for this railroad. The railroad is subject to repetitive damage, as is evidenced by the excessive times that it has sought funding from FEMA for repair. Storms and landslides routinely damage the railroad, including that caused during each of the winter storm/flood disasters (DR-0979, DR-1044, DR-1046, DR-1155 and DR 1203). The EA fails to address this high likelihood of repetitive damage as well as the issues associated with FEMA's funding of projects where said damage is likely to occur.

The railroad was built in areas that are below the high water mark, making it susceptible to flooding and ensuing damage. The Eel River actually flooded in 1909 just prior to the construction of the railroad, and has continued to flood the tracks continually since that time. An old-timer from Alderpoint remembers that he "was reading some of (his) aunt Ellen Smith's papers and read where they surveyed the railroad through (Alderpoint) in 1906. In December of 1909, the Eel River flooded as high as the survey stakes or maybe a few feet higher in some places...But they went ahead and built the railroad anyway knowing it would flood again, as that was the history of the river..." The History of Alderpoint, Ray Mathison, 1998. The floods of 1937, 1955, 1964 and also smaller flood events have caused massive damage to the railroad, and this in turn caused extensive damage to the Eel River. It is highly likely that similar damage of this nature will occur in the future on a regular basis.

FEMA has information in its possession which documents that repetitive damage will occur to the project. In a report titled 'Geotechincal Recommendations for Repair of Northwestern Pacific Railway, MP 68.0 to MP 284.1, Healdsburg To Eureka, California' (June 22, 1999), it states "The portion of northern California through which this section of the NWP passes is notorious for its unstable geology. The track traverses or passes below a large number of landslides. Some of these landslides are very large, extending for hundreds to thousands of feet along the track, and hundreds to thousands of feet upslope from the track. In most cases, stabilizing these slopes would be prohibitively expensive...the NWP should anticipate that realigning and regrading the track and establishing drainage systems would need to be performed relatively often to maintain service."

On page 1 it states, "Many potential large scale and geologic and hydrologic hazards threaten the railroad along its alignment, especially between Ukiah and Eureka." On page 3 it states, "Consequently, some locations may be expected to continue to experience ground movement in the future and may require routine (if not frequent) realignment, retamping and repair." The consultant concludes on page 23 of the report that "The recommendations do not necessarily address global or complete stabilization of the sites and may not prevent occurrences of similar damage."

The "disaster" caused during the 1998 season is a common occurrence with this railroad, and there is no doubt that similar "disasters" will continue to take this railroad out of service on a regular basis. FEMA's policies and regulations prohibit the funding of facilities or projects where repetitive damage is likely to occur, as is the case with this project. The funding of this project would be in clear violation of these policies and regulations governing FEMA, including FEMA's Landslide Policy Relating to Public Facilities dated November 30, 1995, Response and Recovery Policy Number 4311.300 A, EX.



Project Description is Inadequate and Responsibilities of Action Agencies are Unclear

According to the EA, the North Coast Railroad Authority (NCRA), a public agency, has applied to FEMA for Public Assistance, through the California Office of Emergency Services, "to restore the NWP to predisaster conditions, which were identified by the Federal Railroad Administration as Class I track safety standards." EA at 1-1. The EA goes on to state that "FEMA's participation only involves the disaster-related portions of the proposed repair; the NCRA would be responsible for repairing sections of the tract that were unstable before the disasters. Hence, this project is an improved project within the PA program based on the disasters listed above." Ibid. at 1-1.

This is confusing because "predisaster conditions" are defined as "Class 1 track safety conditions," yet the EA acknowledges that NCRA will undertake repairs that were necessary prior to the disaster. This raises serious concerns. The EA fails to describe how FEMA and NCRA determined which problems are related to the pre-disaster and post-disaster track condition. The EA does not specify the dates of the relevant disaster declarations, referring only to February 3, 1998, the date on which the EA claims the railroad went "out of service...due to a major flood disaster." EA at 2-1. In fact, the railroad was shut down by the Federal Railroad Administration in February 1998 due to safety risks and environmental concerns. It is therefore difficult to determine the extent to which existing track damage is in fact related to the referenced disasters rather than inherent geological instability and/or lack of maintenance.

Indeed, FEMA has stated that the NCRA's own negligence in maintaining the railroad may have exacerbated the effects caused by the disaster, making further commitments of funding from FEMA a "high-risk" investment. If much of the damage caused by the "disasters" was due to negligence and faulty maintenance on the part of the railroad operator, this presents further evidence that the project is not eligible for funding under FEMA guidelines. A December 8, 1998 letter from FEMA Region IX Disaster Field Office to Ms. Nancy Ward, Governor's Office of Emergency Services, states:

"...literature is replete with evidence (including statements made to the press by NCRA and Rail-Ways, Inc. representatives) that the majority of the NWP line has not been maintained to Class I Standards for many years. A review of several years of FRA inspections confirms that the NCRA has not performed the maintenance required by applicable regulations. In fact, our inspections and evaluation of the damage leads us to conclude that the NCRA's failure to perform required maintenance exacerbated the effects on the NWP line. FEMA should not and under its own regulations cannot fund work under the Stafford Act or under other FEMA controlling authority for work caused/effected by negligence of the applicant as is clearly the case here as evidenced by FEMA's own statements. An analysis the FEMA funding in relation to the issue of the non-operability of the railroad at the time of the "disasters" must be included in the NEPA document. The negligence of the operated in relation to the disasters presents a bar to FEMA funding, this issue needs to be addressed and assessed in detail in the NEPA document...FEMA has identified the NCRA as a "high-risk" subgrantee due principally to its inability to account for its drawdown of approximately $1.6 million of federal funds, its precarious financial condition, and concerns based on past performance about the NCRA's ability on a going forward basis to perform/complete work in accordance with the applicable DSR scopes."

It is also unclear whether the entire northern section of the NWP was actually operational prior to the relevant disasters given that

Winter storms during early 1993, 1995, 1997 and 1998 caused landslides, slipouts, and slumps along the line. High water in the Eel River and Outlet Creek washed away railroad embankments along several section of track. Some culverts and drainage structures under the tracks were blocked with debris, causing failures. Landslides cover the tracks with debris in several locations. Because of lack of funding, much of prior track maintenance has not been within FRA standards. EA at 2-1; emphasis added.

It seems plausible that NCRA is applying for federal funds to make repairs required by the FRA using the disaster as an excuse, as no documentation to the contrary is provided in the EA. It seems odd that NCRA would wait more than a year, and have its operations shut down by a federal agency, before applying for disaster relief. If this is in fact the case, then this project is not eligible for FEMA funding according to the EA's own criteria. EA at 1-1.

Other examples of the inadequacy of the project description abound. The EA proposes to use gravel fill material and riprap in repairing slumps and heaves along the track. According to the "best management practices" (BMPs) set forth in the EA, "The NCRA would inform NMFS of the source of all gravel fill material, and state where the gravel was collected. Proof of proper consultation and permitting would be made available for review by NMFS upon request." EA at 4-37. FEMA's NEPA guidelines require an EA to discuss the "environmental impact of the proposed action." 44 CFR §10.9 (b) (4). It is not permissible for such impacts to be identified and discussed with another federal agency after project approval; this violates both the spirit and the letter of NEPA. The sources of all gravel, fill material and riprap for project need to be identified, and the environmental impacts of removal of such material must be analyzed. The only such discussion in the EA concerns the Island Mountain quarry, for which "a new permit...needs to be obtained from Trinity County." EA at 4-36. The EA promises to send the old permit to NMFS for use in consultation on the project. Such a document may be of little use to the agency in evaluating the effects of rock removal from that quarry. The EA gives the strong impression that other sources of rock will be used, yet those sites are not identified and the environmental impacts of such removal are not discussed.

Another example concerns BMPs for addressing potential spills of construction debris into the Eel River. According to the EA, ":NCRA would provide a Spill Prevention Plan to NMFS by January 15, 2000." EA at 4-37. Again, such a plan should be considered as an essential mitigation measure for the potentially significant impacts of the project, and should not be developed and submitted after the fact. A discussion of the likelihood of such spills, an analysis of their potential impacts, and a clear identification of mitigation measures need to be included in the analysis of this project, not in a separate document that evades public review.

Perhaps the most glaring example of the inadequacy of the project description occurs in the documents intended to comply with the National Historic Preservation Act (NHPA). FEMA sent letters dated January 11, 2000 to the state Office of Historic Preservation and the federal Advisory Council on Historic Preservation. Both letters contain the following statement: "Because there is a possibility that the current scope of work for the proposed repairs may change at a future date, the area of potential effects is not yet defined, and cultural resources surveys are incomplete for the project, it is currently impossible to accurately determine at present all potential effects to historic properties resulting from the project." EA at Appendix D.

The EA confirms these statements: "Based on the results of the archival research and surveys completed to date, it is clear that portions of the proposed project have not been sufficiently investigated to identify the full array of cultural resources that could potentially be affected by the undertaking. Thus, project-related effects and recommended mitigation measures cannot be fully developed at this time." EA at 4-72. These statements are tantamount to an admission that the project description is incomplete. Furthermore, compliance with NHPA cannot be ascertained, as these letters are the only documentation provided in the EA. FEMA's NEPA regulations encourage preparation of an EIS in cases where "an action will adversely affect a property listed on the National Register of Historic Places or eligible for listing on the Register if, after consultation with the Advisory Council on Historic Preservation an environmental assessment is deemed insufficient." 44 CFR §10.8 (b) (vii); emphasis added. FEMA seems to have determined, contrary to this section, that it can make a decision regarding the sufficiency of the EA prior to such consultation. Indeed, FEMA is so confident about the EA that it has made a determination regarding its sufficiency without even knowing what the impacts of the project will be. FEMA's approach is absurd, irresponsible, and illegal, demonstrating a reckless disregard for the law and for public resources.

The EA thus fails to include the "Purpose and need for the proposed action" as well as an adequate "Description of the proposed action" as required under applicable laws. 44 CFR §10.9 (b) (1) and (2). A finding of no significant impact based on this EA would be clearly illegal, as it is impossible to determine from this document what exactly the project entails and whether the project is even eligible for FEMA funding. Any EIS for this project prepared by FEMA and NCRA should include the following:

1. Copies of relevant Presidential disaster declarations.

2. Clear delineation of damage to the NWP that resulted from these specific disaster events.

3. Clear description of the cost of the project and the sources of funding.

4. Documentation supporting the claim that no FEMA funding will be spent on non-disaster related repairs.

5. Description and analysis of all environmental impacts associated with the project, both on and off-site.

6. Records of complete consultation with, and complete copies of permits issued by, all other state and federal agencies with responsibility for resources affected by the project.

Compliance with the California Environmental Quality Act

The California Public Resources Code defines activities that "may cause...a direct physical change in the environment," and are carried out, funded or authorized by any public agency, as "projects subject to the provisions of the California Environmental Quality Act (CEQA). Pub. Res Code §§21000 et. seq.; 21065 (a)-(c). The NCRA, chartered and funded by the state, is a public agency. The project requires permits from the California Department of Fish & Game, the California Coastal Commission and the North Coast Regional Water Quality Control Board. EA at 5-2. The extent to which state funds will be used for implementation of the project is unclear because the EA contains no description of the cost of the project or the sources of funding.

This project has a substantial component that involves public agencies of the State of California, will admittedly have a significant environmental impact, and therefore must be complaint with CEQA. Yet there is no statement of intent to comply with CEQA in this document. CEQA does offer very limited statutory exemptions from CEQA for repairs to facilities "damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed b the Governor...." Pub. Res. Code §21080 (b) (3); see also CEQA Guidelines §15269 (a). California courts have tended to view use of such exemptions very narrowly. See Castaic Lake Water Agency v. City of Santa Clarita (2nd Dist. 1995) 41 Cal. App. 4th 1257 [49 Cal.Rptr.2d 79] [Improper use of CEQA's emergency exemption to aprove recovery plan following Northridge earthquake; "The court noted that the recovery plan impemented a number of policies and programs...designed to upgrade the city's infrastructure, [which] were not clearly tied to repairing damage caused by the Northridge earthquake." Remy et. al., Guide to the California Environmental Quality Act, 1999, 89.] It is clear that elements of this project to be carried out directly by NCRA are unrelated to any disaster declaration. This fact not only renders those portions of the project ineligible for any statutory CEQA exemption, but also raises the question of whether this entire project is not, in fact, analogous to the recovery plan rejected by the court in Castaic Lake. CEQA compliance must be addressed before any element of this project can proceed.

Analysis of Alternatives is Inadequate

With respect to alternatives dismissed from consideration, we generally agree that rerouting the NWP is neither feasible nor environmentally desirable. The dismissal of the "Repair the NWP to Full Service Alternative," however, raises some interesting questions. Here, the EA acknowledges that "The northern section of the NWP has numerous landslides that reactivate during the rainy season, and stabilizing these slides would be a very expensive undertaking. ...Many of the unstable sites are repetitive damage sites. Claims for track repair related to unstable ground have been submitted under several FEMA disaster reports. ...The estimated cost of stabilization was $642 million." EA at 3-1. One wonders what exactly FEMA and NCRA hope to accomplish by the Proposed Action in this context. If the entire line is inherently unstable, it seems that regular infusions of public money will be required to maintain the line even at minimal track safety standards in the future. Thus the Proposed Action cannot be considered as a discrete project, and must be analyzed in terms of the likely necessity of similar projects for as long as the railroad is in existence. Is it appropriate for FEMA to fund disaster-related repairs that are subject to perpetual recurrence?

Alternative 1, the No Action Alternative, is not described in great detail. The EA states that "firms requiring transportation between Eureka and Willits would likely use commercial trucking companies." EA at 3-1. (Alternative 3, the Highway Transportation Alternative, is analyzed similarly; EA at 3-16.) This has obviously been the case for at least one year, and has been the case in the past during the frequent periods when the NWP was out of service. Therefore there must be some empirical way to substantiate the EA's assertions, by way of example, that "mortality to wildlife may increase with more traffic along Highway 101" and "Use of rail transportation would reduce numbers of trucks on the highway, thus reducing the potential for accidents involving passengers and drivers." EA 3-16, 3-17. However, no such empirical analysis is presented.

The Highway Transportation Alternative is also inadequately described. This alternative assumes abandonment of the NWP north of Willits. In 1983, the original NWP (a subsidiary of Southern Pacific at the time) filed plans with the Interstate Commerce Commission to abandon the railroad, citing financial losses and inability to properly maintain the line. The California Public Utilities Commission filed suit seeking preparation of an EIS, citing environmental impacts associated with abandonment; a court preliminarily ruled in favor of the Commission, but before an EIS could be prepared, the NWP was sold to the new Eureka Southern Railroad. The California Coastal Commission strongly protested the ICC's decision to approve the sale without environmental review, expressing concern that the new owners would not be able to maintain the railroad adequately. Eureka Southern filed for bankruptcy in 1986, and after years of protracted legal battles between Eureka Southern and its creditors, the NCRA eventually took over management of the line.

Abandonment of a railroad clearly deserves careful analysis. The courts have already determined that such an action would require an EIS. Yet the EA dismisses this alternative cursorily, claiming without any documentation or discussion that "Costs associated with cleanup would be prohibitive. This alternative would not be economically viable due to cleanup costs and loss of revenue from permanently closing the northern portion of the railroad." EA at 3-16. Interestingly, this is the only section of the EA that acknowledges the existence of "hazardous materials in the railroad ROW" and NCRA's responsibility for cleaning those materials up. EA at 3-16; see also discussion of toxic substances, infra. Once again, the circumstances not only of the project but of the alternatives to its implementation warrant preparation of an EIS.

Furthermore, the environmental benefits of choosing the no-action alternative are not adequately addressed or disclosed by the draft EA.

Analysis of Cumulative Impacts is Inadequate

"The amount of sediment washed through the Eel River is legendary, a process known as sediment production or yield. Most geology students are acquainted with the 1971 Brown & Ritter study that found that the Eel River was one of the highest sediment producing rivers in the world, carrying fifteen times as much sediment as the notoriously muddy Mississippi (Brown & Ritter, 1971.)" Draft South Fork Eel Temperature and Sediment TMDLs, October 6, 1999. With the geological makeup of the Eel River, development, roadbuilding, grazing, logging, and the railroad in the watershed have left it choked with sediment. However, the cumulative effects from these impacts that are felt by the watershed are not adequately assessed, analyzed or considered in the draft EA.

The EA acknowledges that the project and future operation of the railroad interact with other environmentally significant uses of the Eel River area. In a rare display of certainty, the EA states that "Railroad repair and logging occurring in the same area would cumulatively impact liste