Law Office of Brian Gaffney

Re: Permit numbers PRT-828950 and 1157 and SYP 96-002 Dear Mr. Halstead and Mr. Munn:
This office represents the Sierra Club and the Environmental Protection Information Center ("EPIC") with respect to the proposed Pacific Lumber Company Habitat Conservation Plan (HCP) and incidental take permit (ITP) applications under §10 of the federal Endangered Species Act , California Fish and Game Code §§ 2081, 2090, and with respect to the Sustained Yield Plan under the California Forest Practice Rules, Article 6.75 (hereinafter the "HCP/SYP"), as well as the joint draft Environmental Impact Statement/Environmental Impact Report (hereinafter the "EIS/EIR") prepared for this project. I am writing to submit comments regarding these matters on behalf of the Sierra Club and EPIC. These comments and the evidence submitted herewith are meant to incorporate and supplement other comments submitted by members of the public including the Sierra Club and EPIC.

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I. Incomplete Documentation

In addition, the federal agencies have been extremely dilatory in responding to FOIA requests. NMFS has failed to provide any response to FOIAs filed March 26, 1998, May 29, 1998, July 24, 1998 and August 4, 1998, despite the fact that the proper administrative appeals have been filed. Similarly, the FWS has failed to make any response to FOIAs filed May 29, 1998, July 28, 1997, and May 5, 1997, despite the fact that the proper administrative appeals have been filed. Also, the U.S. Forest Service has denied documents originally requested on May 16, 1997, and has only provided a limited amount of requested material over a year later on May 12, 1998.

Failure to provide these documents violates ESA §10(c) and FOIA. Again, the public cannot effectively review the scientific basis for this HCP/SYP without these documents being made available for review and comment. These documents may have been relied upon to reach unsupported assumptions or conclusions.

Indeed, the permitting agencies: FWS, NMFS, DFG, and CDF, are at a similar disadvantage. If you have not received all of these documents, you cannot determine whether this HCP/SYP is Based on the "best scientific and commercial evidence available" as required by §7 of the ESA, nor reach determinations of insignificance in the EIS pursuant to NEPA and CEQA. In addition, the agencies should have received specific, detailed information regarding the costs of particular minimization and mitigation measures, as well as the financial circumstances of the permit applicant to support PL's claims that the proposed mitigation is the maximum extent practicable. See 8/8/97 letter from Sierra Club/EPIC, included herein.

Sierra Club/EPIC request that copies of all such documents be provided, and that the public comment period be extended for 30 days after Sierra Club/EPIC's receipt of these studies. Finally if members of the public requested a full EIS/EIR and HCP/SYP and were only sent summaries, the comment period should be extended to allow the public time to review and comment on these documents.

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II. Failure to Adequately Describe Environmental Setting

(1) Failure to describe how much of the "buffering second growth timber is already 60'-100' tall." (HCP IV(B)(1), p.2)

(2) Failure to survey to determine how much of the residual old-growth redwood is suitable or potentially suitable habitat for murrelets. The EIS indicates that at least 45% of the potentially suitable murrelet habitat has not been surveyed. (EIS p.3.10-125) The EIS alternatively states that the amount of unsurveyed acreage equals 7,840 acres of unentered and residual old-growth redwood (EIS Table N.1-1.)

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III. Failure to present an accurate, stable and finite project description

(1) The HCP fails to state whether Owl Creek grove and/or Grizzly Creek grove will be harvested. (HCP p. 31)

(2) Failure to describe the project as modified by the terms of the Implementation

Agreement (IA)

(3) The IA inadequately describes the project. Examples include without limitation:

reference to exhibits which are not included for public review and analysis, reference to maps rather than legal descriptions of the MMCAs and the plan area, vague and inadequate definitions of "Covered Activities", "Operating Conservation Program", "Species" affected by the permit, and "restrictions and conditions" of the MMCA Conservation Activities, etc. See Comments on IA attached hereto.

(4) The EIS provides widely divergent estimates of the acreage of residual and unentered old-growth which will be harvested and preserved.

(5) The EIS fails to include a stable and finite project description in light of AB1986, including inter alia, a prohibition on timber harvesting, salvage logging and other detrimental activities within the MMCAs for the life of the permit, as well as a 5-year moratorium on such activities within the Grizzly Creek MMCA.

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IV. Inadequate Analysis of Proposed Mitigations

(2) There is no analysis of how providing 421 acres of buffer (EIS\EIR Appendix N2, Table 1A) will mitigate for taking 8,823 acres of old-growth redwood and at least 251 murrelets.

(3) The EIS/EIR conclusion that significant impacts will be mitigated is not supported by the evidence. The creation of blocks of habitat in the long-term will not mitigate this "take" because of the current bottleneck in available murrelet habitat and rapidly declining murrelet populations.

(4) Short-term significant adverse impacts are not mitigated by the long-term potential benefits of the HCP.

(5) The HCP claims that the "mature forest connectivity along streams provided in the aquatics conservation strategy under this plan may also be beneficial for murrelets as they fly between the ocean and nesting habitat." However, neither the EIS/EIR nor the HCP/SYP provide any analysis of how this would mitigate significant adverse impacts or provide purported benefits. (HCP Vol. IV(B)(1), p26.)

(6) No analysis of why effectiveness monitoring is to be performed only inside the MMCAs, particularly where at least 45% of potentially suitable murrelet habitat on PL's lands is currently unsurveyed. The effectiveness monitoring is suspect as to its reliability given that it is to be conducted by PL or its agents. (HCP, Vol. IV(B)(1), p. 39-41.)

(7) The draft EIR fails to comply with Pub. Res. Code 21081.6.

(8) The HCP claims that "habitat quality of the reserved residual timber [will improve] over time" - without even explaining whether the period of time is 50 years or 250 years or how this improvement will mitigate admitted significant adverse impacts to the murrelet over the next 50-100 year survival bottleneck period.

(9) There is no analysis of how logging with 300 foot buffer will "enhance late seral characteristics" as claimed by the HCP.

(10) The HCP/SYP includes numerous provisions requiring post-approval studies to develop mitigation measures necessary to reduce or avoid significant adverse environmental impacts, including impacts to endangered or threatened species, in violation of CEQA (Sundstrom v. County of Mendocino (1988) 202 Cal. App.3d 296, __) and § 7 of the ESA (Conner v. Burford, 848 F. 2d 1441, 1454-57 (9th Cir.1988), cert. denied 489 U.S. 1012) and rendering compliance with § 10 of the ESA impossible. Examples include, without limitation:

(A) thinning within MMCAs on a case by case basis, as provided in IA §3.1.1(b)

(B) effectiveness monitoring to be designed and implemented after ITP approval. No criteria or performance standards are included. (HCP, Vol. IV(B)(1), p. 39-41.)

(C) References in the IA, including without limitation:

-the Fire Management Plan referenced at IA §3.1.1(a),

-impacts as a result of take on northern spotted owls referenced at IA §5.2(a),

-future watershed analysis referenced at IA § 3.1.3.1(a).

(11) The EIS omits analysis of how the short term direct and indirect effects would be mitigated in the long term to less than significant. (EIS p. 3.10-123.)

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V. Conclusions Reached Are Unsupported by Substantial Evidence

(2) The HCP statement that "Under this HCP, PALCO will protect all known active nests, and will monitor their success" is unsupported by the evidence. HCP IV(B1),p. 41.

(3) Claims that forest once cut will provide murrelet protection at the end of the term of the permit are unsupported by Murrelet Critical Habitat Designation which found that

"Forests providing suitable nesting habitat and nest trees generally require 200 to 250 years to develop characteristics that supply adequate nest platforms for marbled murrelets." 61 FR 26262.

(4) Surveys necessary to evaluate impacts of the project to murrelets have not been conducted, therefore the conclusion of insignificant long-term impact is not substantiated.

(5) The HCP claim that "the preservation of the Headwaters Reserve .. is the most important murrelet conservation measure in the HCP" is rejected by the federal agencies.

(6) The HCP/SYP and EIS/EIR statements regarding mitigations are also unsupported for all the reasons stated below under Section entitled "Mitigation to the Maximum Extent Practicable."

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VI. Inadequate Analysis of Significant Adverse Environmental Impacts

(1) There is no analysis of the impacts which result from an ITP issued for a 50 year period, versus a shorter or longer time period.

(2) There is no analysis of the impacts which may resulting from the failure to survey for murrelet occupancy in areas planned to be logged. The underlying analysis of murrelet populations, mitigation measures, and the jeopardy determination are all compromised by faulty and unreliable estimates and presumptions. The agencies can't hide behind their failure to gather relevant data.

(3) The impact analysis uses an arbitrary and inappropriate time frame (i.e. finding admitted adverse "short term" impacts to be insignificant because "long term" impacts after 50 years will be insignificant) in violation of 50 CFR § 1502.27(a) and (b)(7).

The murrelet analysis (Chapter 3.10) is based on the premise that the Headwaters project would be environmentally beneficial in the long term with respect to murrelets. EIS/EIR analyses concede that these resources would be adversely affected in the short term, but contends they will be beneficially affected in the long-term. The analysis fails to address actual potential losses of murrelets, murrelet habitat and murrelet reproductive success in the short-term, the most significant period during which survival is highly questionable.

(4) The EIS does not analyze the significance of continuing or exacerbating existing significant adverse effect for the next 50-100 years, particularly in regards to reproductive success. (See e.g. Nelson comments and Carter comments, submitted herewith.)

The HCP and EIS ignore the absolutely fundamental issue of whether there will be any murrelets left in the MMCAs on PL's land to benefit from any purported long term beneficial effects of this project 50 years from now.

(5) The impact analysis uses an arbitrary and inappropriate baseline to represent the current environmental setting (i.e. Baselines used are extensions of current logging practices into the future, rather than existing on-the-ground conditions in the environment). Nowhere does the EIR use as a Baseline for evaluating the significance of impacts the existing environmental conditions projected into the future. The no project alternative does not do so, nor do the individual impact analyses for Marbled Murrelets. Baselines used appear to be extensions of current logging practices into the future (only considering Forest Practice Rules, and not the §9 prohibitions of the ESA), as opposed to existing on-the-ground conditions (Baselines used in the assessment are not specifically called out in the text).

(6) The impact analysis fails to analyze the significance of adverse impacts of the actual project - i.e. logging under the HCP/SYP.

(7) The impact analysis fails to analyze the significance of adverse impacts of the project in both a regional and local context as required by 50 CFR § 1508.27(a).

(8) The impact analysis fails to analyze the project as defined and modified by the Implementation Agreement (IA). The IA contains numerous provisions of the project which are mentioned nowhere else. Yet the EIS/EIR does not even mention the IA. Failure to analyze the whole of the project is a fatal flaw in this analysis.

(9) All methods chosen to assess impacts to murrelets focus exclusively on impact to habitat and avoid any description of impact to species. In particular, Table 4 referenced on HCP Vol. IV(B)(1) p. 9 does not explain the factors and assumptions underlying the range of estimates.

(10) The impact analysis fails to describe or analyze the impacts likely to result from activities within the MMCAs. Note: Subsequent actions below will not entail further NEPA/CEQA compliance pursuant to IA p.18. There is absolutely no analysis of the impact of any of the following on marbled murrelets or other species:

1. Rock and gravel mining in Allen Creek (IA p.16). Blasting is allowed to occur from March 25th to September 14. Excavation, drilling, screening, loading and related activities are permitted throughout the year. (HCP IV (B1), p. 35).

2. Up to 4 acres may be cleared within each MMCA grove for operation of existing as well as new "borrow pits." (IA p.16; see also HCP IV(B1), p34 which says that trees greater than 12" to be so removed. It is unclear whether any seasonal restriction will apply.

3. Remarkably, hunting, including firearm discharge, will be allowed in the MMCAs between September 16 and March 23 (IA, p.17.)

4. Removal of trees or salvage to permit road use & maintenance & storm proofing (IA p.16; see also HCP IV(B1), p.34.)

5. Fuel removal within old growth residual stands and 2nd growth stands. It is unclear whether any seasonal restriction will apply.

6. Precommercial thinning and commercial thinning of Residual and 2nd growth trees on a case by case basis.

7. Existing, active and previously used haul roads within MMCAs may be used or maintained. It is unclear whether any seasonal restriction will apply.

8. New Roads are Proposed in LNF Elk MMCA and Grizzly Ck complex MMCA (See maps at HCP Vol. IV(B8) - 1st and last map)

9. A truncated seasonal restriction of May 1 to August 10 for timber falling in Owl Creek or Grizzly Creek (HCP Vol. IV(B1), pg. 33)

(11) The analysis of impacts to murrelets outside the MMCAs is inadequate.

(12) There is absolutely no analysis of impact to murrelets as a result of disturbance. Take through harassment includes disruption of important behavioral characteristics and yet take is assumed to be limited solely to direct killing of birds as a result of cutting down their nest trees. See comments of Nelson; see also, for example Biological Opinions #1-1-94-F-66 and 1-7-96-F-84 and subsequent reinitiations of consultation.

(13) The HCP/SYP includes numerous provisions requiring post-approval federal agency participation, oversight or approval, without either analysis or assurances that the agencies will have the resources to fulfill those functions. Examples include, without limitation, the Services' claim that they have resources that can be utilized to provide additional protection to Covered Species in event of finding of Unforeseen Circumstances. (IA §6.1.6.6.)

(14) Figure 5 does not demonstrate the results of murrelet surveys undertaken throughout the plan area over the last 5 years. Figure provides no analysis. HCP IV(B1) p. 12-13.

(15) The HCP relies upon the assertion that "much of the unsuitable critical habitat in federal ownership is anticipated to become suitable habitat over time." (HCP Vol. IV(B1), p.18.) Yet by failing to state over what period of time the HCP prevents any analysis of the impacts. The Murrelet Critical Habitat designation states that 200-250 years are needed for habitat to become suitable to murrelets.

(16) The HCP states that: "The overall effect of the HCP on the marbled murrelet is to protect in perpetuity the most important murrelet habitat on the Company's lands (the Headwaters Reserve), and to protect a large majority of high quality habitat on Company lands and to enhance the probability of survival of the murrelet for the next 50 years." HCP Vol.IV(B)(1) p. 7.

This statement falls short of the statutory mandates to 1) not appreciably reduce the likelihood of survival and recovery, 2) minimize and mitigate to the maximum extent practicable and 3) avoid significant adverse impacts.

(17) The EIS fails to analyze the role of residual to murrelet nest success. The EIS has ignored the position of the Pacific Seabird Group on the role residual redwood plays to murrelet survival and recovery.

(18) There is no analysis provided to conclude that most of the designated critical habitat on PL and Elk River Timber Company lands does not contain the requisite critical habitat constituent elements. There is no breakdown of this designated critical habitat acreage by either of the two listed constituent elements, and the land has not been properly surveyed. (EIS p. 3.10-49.)

(19) The EIR is missing an analysis of significant impacts given the conflicts of the PL HCP with the Murrelet recovery plan.

It is important to note that Appendix N is not the EIS analysis, but only evidence that the EIS can rely upon.

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VII. Cumulative Impacts

(1) There is no analysis of the cumulative impact of allowing harvest within 1 or more MMCA groves if the Federal agencies have agreed that the delisting criteria in the "then-existing Murrelet Recovery Plan" have been met.

(2) The cumulative impacts analysis fails to add the incremental impact of this ITP/HCP/SYP to existing significant impacts from past projects.

(3) The cumulative impacts analysis assumes that minimizing impacts from this ITP/HCP/SYP will avoid significant adverse impacts.

(4) There is no analysis of the cumulative impact of allowing the IA provision that the Wildlife Agencies will not require any further compliance under NEPA or CEQA for MMCA Activities.

(5) There is no analysis of the cumulative impact of the 1997 Kure Oil spill, despite the fact that information regarding this event is in the possession of the Agencies and the USDA Redwood Science Lab.

(6) There is no analysis of the cumulative impact of allowing the "safe harbor" and "no surprises" policies to be applied to this project.

(7) There is no analysis of the cumulative impact of failing to survey thousands of acres of potentially suitable murrelet habitat consistent with the Recovery Plan recommendations.

(8) There is no analysis of the cumulative impact to marbled murrelets of the following foreseeable changes in circumstances:

A) increases in predation. The HCP states (Vol.IV(B1),p. 42) that "marbled murrelet predators ... are associated with human activity," and "the densities of these predators are increasing locally and state-wide."

B) increased take as a result of gill net morality. This is a reasonably foreseeable future event given that it was one of the Bases for listing the murrelet as federally threatened. In addition, numerous Biological Opinions have concluding that take of murrelets is occurring as a result of gillnetting,

C) oil spills and other pollution. Numerous Biological Opinions have concluding that take of murrelets is occurring as a result of oil spills (See BO #1-2-96-F-236, 1-14-97-F-3; 1-3-96-F-324, 1-3-96-F-236, 1-3-93-F-592.)

D) El Nino (See HCP p. 16-17; see also Biological Opinion # 1-7-95-F-278.)

See also, infra, Reasonable Foreseeable Circumstances.

(9) There is no analysis of the cumulative impact of the fact that the murrelet population is declining at a rate greater than 4-7% annually.

(10) There is no analysis of the cumulative impact of the provision which only limits take of northern spotted owl on additional lands during the first 5 years of the Permits, thus allowing the inference that take is permitted where lands are acquired on or after Year 6. See IA §5.2(a).

(11) There is no analysis of the cumulative impact of the pending Arcata Redwood HCP.

(12) There is no analysis of the past, present and reasonably foreseeable impacts of federal actions on federal lands1 nor as a result of other HCPs, throughout the range of marbled murrelet, northern spotted owl, coho salmon and all other "Covered Species." The 235 Biological Opinions affecting Marbled Murrelet and Northern Spotted Owl summarized by our monitoring project reveal that2:

- Almost 5000 northern spotted owls have been allowed to be "taken", i.e. killed, harmed or harassed by the U.S. Fish & Wildlife Service over the past seven years.

- Take as a result of gill net fishing has resulted in a loss of 185-210 murrelets.

- Approximately 283,839 acres of suitable Northern Spotted Owl nesting, roosting & foraging habitat has been "removed" or destroyed.

- 20,832 acres of suitable marbled murrelet habitat (ancient forest) has been "removed" or destroyed

- 671,305 - 822,8853 acres of Northern Spotted Owl nesting, roosting & foraging habitat has been degraded.

- 51,182 - 144,689 acres of marbled murrelet suitable habitat (ancient forest) has been degraded.

- 1,118,848 - 1,289,773 acres of Northern Spotted Owl suitable habitat has been removed, degraded, or otherwise affected by federal agency action

-264,737 - 375,374 acres of marbled murrelet suitable habitat has been removed, degraded, or otherwise affected by federal agency action.

(13) There is no analysis of the cumulative impact of all other past, present and reasonably foreseeable future HCPs in the Pacific Northwest. (See "Western Forest HCP Inventory" submitted herewith, as well as the Biological Opinions for the following HCPs: Washington Department of Natural Resources HCP, Elliott State Forest HCP, Simpson Timber Company HCP, Weyerhauser-Millicoma Tree Farm HCP, Murray-Pacific - Mineral Tree Farm HCP and Amendment, and Regli Estate HCP.

(14) There is no attempt to analyze the cumulative impact analysis of the admission that "long-term effects post-HCP unknown", referring to a footnote which states, "At the end of the 50-year HCP period (i.e., the long term), effects on Murrelets with respect to fate of MMCAs are unknown". (EIS p. 3.10-91.)

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VIII. Inadequate Analysis of Alternatives.

The EIS/EIS alternatives discussion fail to do this. Neither the state nor the federal version includes a no project alternative that analyzes "existing conditions", because neither no project alternative consists of "no logging." Consequently, the EIS/EIR fails to provide a comparison of the relative environmental benefits of no logging to the proposed project. Further, the state version of the no project alternative is only a short term projection.

But the difficulty in specifying future conditions with precision does not excuse the failure to analyze a no project alternative that has a time duration at least as long as the proposed project (i.e. fifty years). The discussion of project alternatives must "contain facts and analysis; not just the agency's bare conclusions or opinions" and must contain "meaningful detail" sufficient to provide the decision maker with enough information to make an informed decision and to enable the public "to understand, evaluate and respond to the agency's conclusions.". Laurel Heights I, supra, 47 Cal. 3d at 404, 406, 399-407. In sum, the alternatives discussion fails to describe what could be reasonably expected to occur in the future if the HCP/SYP is not approved.

Similar to the defective EIR discussed in Laurel Heights, supra, the instant EIR contains "no analysis of any alternative locations" for harvesting that would not have such severe impacts on Marbled Murrelets, (Id. at 404; see also Citizens of Goleta Valley v. Board of Supervisors II (1989) 216 Cal. App..3d 48 (EIR must sufficiently inform the public why ostensibly feasible alternative sites were rejected).)

(2) The EIS fails to analysis all feasible Alternatives.

(A) There is no discussion in the EIS of an alternative which would maintain the MMCAs but phase the harvest so that cutting were completed on a slower schedule with the lower quality habitat being cut first, despite the fact that the HCP considers such an alternative. HCP Vol. IV(B1), p. 37.

(B) There is no discussion in the EIS of the reasonable alternatives presented by the USFWS and presented in HCP Vol. IV(B)(13).

(C) There is no discussion in the EIS of implementing a "FEMAT alternative" which would survey before logging and avoid all occupied murrelet sites.

(D) There is no analysis of an alternative permit period. The Elliot State Forest HCP is for only 6 years. See Nelson comments.

(3) Under Alternatives 2 and 4, the EIS fails to discuss whether or not short term indirect effects are adverse or not, and whether they are significant or not. (EIS p. 3.10-123.)

(4) Finally, it is the project proponent's responsibility to provide an adequate discussion of alternatives, and "[t]hat responsibility is not dependent in the first instance on a showing by the public that there are feasible alternatives. If the project proponent concludes that there are no feasible alternatives, it must explain in meaningful detail in the EIR the basis for that conclusion (Laurel Heights at 405.)

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IX. The HCP Fails to Mitigate and Minimize Impacts to the Maximum Extent Practicable4 and Therefore Should Be Rejected

(1) PL has made no demonstration of economic feasibility or infeasibility of the project, mitigations, minimizations or alternatives considered. See EPIC/Sierra Club 8/8/97 letter, submitted herewith.

(2) Neither the HCP/SYP nor the EIS/EIR has provided analysis or facts to support the claim that take has been minimized and mitigated to maximum extent practicable. There has been no such analysis or supporting facts regarding each of the following aspects of the project outside the MMCAs:

(A) Harvest of currently occupied habitat and potentially suitable habitat will occur during the nesting season. (HCP Vol. IV(B)(1), p. 32, 35)

(B) Where active nest is discovered, the tree will be cut once the nestling fledges. (Id.)

(C) No buffering or seasonal restrictions will be provided for suitable nesting habitat along the exterior borders of the MMCA groves. (Id.)

(D) A 300 ft vegetative buffer from Suitable Nesting Habitat along 1)the PALCO / Humboldt Redwood State Park boundary and the 2) Grizzly Creek State Park lands along Highway 36. Within this buffer late seral logging will be allowed where selection logging will occur every 20 years, retaining only 240 square foot residual Basal Area. (Id.)

(E) Within 0.25 mile of suitable nesting habitat on public preserves (Grizzly Ck State Park, HRSP and Headwaters Grove) a seasonal restriction of March 24 to September 15 from falling, yarding and log loading. (B1, pg. 32). The seasonal restriction will not preclude maintenance, use and stormproofing of existing roads, "previously used" haul roads and "other facilities."

(3) Neither the HCP/SYP nor the EIS/EIR has provided analysis or facts to support the claim that take has been minimized and mitigated to maximum extent practicable. There has been no such analysis or supporting facts regarding each of the following aspects of the project inside the MMCAs:

(A) Rock and gravel mining in Allen Creek (IA p.16). Blasting allowed to occur from March 25 to September 14. Excavation, drilling, screening, loaded and related activities are permitted throughout the year. (HCP IV(B1), p. 35)

(B) Up to 4 acres cleared within each MMCA grove for operation of existing as well as new "borrow pits" - IA p.16 / (HCP B1, p34 also says not trees greater than 12"to be so removed)

(C) Hunting, including firearm discharge, between September 16 and March 23 - p.17

(D) Removal of trees or salvage to permit road use & maintenance & storm proofing

(E) Fuel removal within Old growth residual stands and 2nd growth stands

(F) Precommercial thinning and commercial thinning of Residual and 2nd growth trees on a case by case basis.

(G) Existing, active and previously used haul roads within MMCAs may be used or maintained.

(H) New Roads are Proposed in LNF Elk MMCA and Grizzly Ck complex MMCA (See maps at HCP Vol. IV(B8))

(I) A truncated seasonal restriction of May 1 to August 10 for timber falling in either Owl or Grizzly Ck MMCA.

(J) Harvest may be allowed within 1 or more MMCA groves if the Federal agencies have agreed that the delisting criteria in the "then-existing Murrelet Recovery Plan" have been met.

(4) Practicable minimization of impact should have included:

(A) Survey for murrelets before logging outside MMCAs. The Northwest Forest Plan and numerous other HCPs, including Elliot State Forest, require such surveys before logging. See Kim Nelson comments.

(B) Avoidance of all occupied murrelet habitat outside MMCAs

(C) Avoidance of harvest during nesting season outside MMCAs

(D) Full seasonal restrictions in Grizzly Ck and Owl Ck groves

(E) Monitoring outside MMCAs. Currently the PL monitoring plan only will look inside the MMCAs.

(F) Permanent protection of all nesting habitat with 1/2 mile circles around all occupied sites as required by Northwest Forest Plan (HCP p. 21) and the Marbled Murrelet critical habitat designation.

(5) The HCP admits that "additional research or survey methods" include radar and telemetry, and yet these are not included in the mitigation measures. (HCP Vol. IV(B1), p. 41)

(6) If, as HCP claims, "inland surveys are not, by themselves, thought to monitor adequately marbled murrelet numbers effectively enough to allow estimates of population trends (HCP Vol. IV(B1) p. 41), why is no at-sea monitoring included as mitigation here.

(7) Reference to the FWS documents submitted herewith reveals that PL did not mitigate to the maximum extent practicable.

(8) The HCP itself reveals that PL didn't attempt to mitigate to the maximum extent practicable but only so that "Alternatives were rejected if they didn't grant" the ability to harvest an equivalent timber value on volume in the lower habitat-value MMCAs. HCP Vol. IV(B1), p. 25.

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X. The HCP Fails to Meet the Other 10(a)(2)(B) Criteria and Therefore Should Be Rejected by FWS and NMFS.

The applicant has not "ensured" that adequate funding will be provided. The phrase in IA §3.3 that "...such funds as may be necessary to fulfill its obligations under the HCP" does not specify the amount or source of such fund, nor what the Service consider "the obligations under the HCP." This omission violates the ESA, NEPA and CEQA. The IA does not describe the funding sources that PALCO will use at Volume I, Part A of the HCP.

For a 50 year permit to kill endangered species, the provision which allows PL to defer demonstrating that it has sufficient funds violates ESA §10(a)(2)(B)(iii).

The ESA requires a demonstration be made as part of the HCP application that sufficient funds exist to carry out the required mitigation and conservation measures for the life of the permit

$1.5 million is an arbitrary number and there is no evidence to support a finding that this amount is adequate funding for the plan. Moreover, adequate funding for the plan should be in the form of a bond which control is vested in the Wildlife Agencies for the life of the permit.

Moreover, "a material change in PALCO's funding resources" is a foreseeable change in circumstances which must be analyzed in the EIS/EIR. Also, "A material change in PALCO's funding resources" as "any change in the financial condition of PALCO which will adversely affect PALCO's ability to manage the Covered Lands" is so broad and vague that it is arbitrary and capricious. Moreover, to the extent that this determination may be made by PL, the agencies have abrogated their ESA duties.

(B) PL failed to specify the impacts that will likely result from this HCP

As demonstrated above, PL failed to specify the impacts that will likely result from this plan, making assertions contradicted by all substantial evidence and without the benefit of any supporting analysis. 16 USC §1539(a)(2)(B).

(C) Specification of other measures that the Secretary may require

The HCP is entirely devoid of any specification of other measures that the Secretary may require as necessary and appropriate for purposes of the plan. After negotiating over the terms of the HCP with NMFS and FWS for almost two years, PL was acutely aware of the measures which the Services believed were necessary and appropriate for the HCP. Yet, the applicant entirely omitted even a summary of this information from the HCP submitted for public review. Failure to include this statutorily required information is grounds for rejection of the plan.

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XI. Foreseeable Changes in Circumstances

A) increases in predation,

B) net morality,

C) oil spills and other pollution,

D) El Nino

E) Harvest of residual and unentered old growth redwood outside of MMCAs resulting in detrimental effects on murrelets within the MMCAs (HCP Vol. IV(B1), p. 41).

F) The rate of murrelet population decline increasing (HCP Vol. IV(B1), p. 43).

G)"A material change in PALCO's funding resources" as described at IA §3.3

H) Extension of the ITP Boundaries

I) PL's relinquishment of the permit.

J) Disposal of lands, including transfer of ownership or control

K) Harvest allowed within 1 or more MMCA groves if the Federal agencies have agreed that the delisting criteria in the "then-existing Murrelet Recovery Plan" have been met

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XII. Approval of the Proposed Permit Will Result in Adverse Modification of Critical habitat

Within areas essential for successful marbled murrelet nesting, the Service has focused on the following primary constituent elements:

(1) individual trees with potential nesting platforms, and

(2) forested areas within 0.8 kilometers (0.5 miles) of individual trees with potential nesting platforms, and with a canopy height of at least one-half the site-potential tree height5.

This includes all such forest, regardless of contiguity. These primary constituent elements are essential to provide and support suitable nesting habitat for successful reproduction of the marbled murrelet." 61 FR 26264. "Potential nesting areas may contain fewer than one suitable nesting tree per acre." 61 FR 26265. "The Service has determined that the physical and biological habitat features (referred to as the primary constituent elements) associated with the terrestrial environment that support nesting, roosting, and other normal behaviors are essential to the conservation of the marbled murrelet and require special management considerations." 61 FR 26264.

"Known occupied sites may represent only a small portion of the population due to the limited coverage of past survey efforts" and "known occupied sites provide only a partial indication of the areas used by the species." 61 FR 26265 & 26270.

"A designation of critical habitat begins by identifying areas essential to conservation of a species. In determining which areas to designate as critical habitat, the Service considers those physical and biological features essential to a species' conservation. 61 FR 26264. The use of the term ``conservation'' in the definition of critical habitat indicates that its designation would include habitat essential to a species' eventual recovery and delisting." 61 FR 26263. Private lands were designated as critical habitat because they provide essential elements and occur where Federal lands are very limited, although habitat availability on private land is typically much more limited than on public lands. These areas include ...nesting habitat and occupied sites for the at-sea murrelet population in the southern portion of the Draft Recovery Plan's proposed Marbled Murrelet Conservation Zone 4 in California, including the Headwaters Forest area." 61 FR 26265-26266. "The Service chose non-Federal lands on the basis of limited amounts of Federal lands in the vicinity that could support a well-distributed population of marbled murrelets and on the basis of the non-Federal land's contribution to recovery." 61 FR 26274.

"The evaluation of actions that may affect critical habitat for the marbled murrelet would consider the effects of a Federal action on any of the factors that were the basis for determining the habitat to be critical, including the primary constituent elements of potential nest trees and surrounding forest." 61 FR 26271. " The basis for an adverse modification opinion would be whether a proposed action appreciably reduces the ability of critical habitat to function in achieving the regional conservation zone goals." Id. The loss of populations throughout one or more conservation zones, or even a major part of a conservation

zone, could lead to genetic and demographic isolation of parts of the population." Id.

(2) Lifting the critical habitat designation from PL lands based on this HCP would be in violation of the ESA and would be arbitrary and capricious.

(3) It is important to note that avoidance of adverse modification of critical habitat is not mentioned as a PL HCP planning principle. (HCP Vol. IV(B1), p. 23)

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XIII. Approval of This Proposed Permit Will Result in Jeopardy to the Marbled Murrelet

(2) The HCP itself states that "[t]his HCP may not, in and of itself, result in higher breeding success. Few new nesting platforms not now extant can be reliably predicted to develop naturally within the early years of this plan." "Hence we do not expect the number of breeding sites to increase in the early years of this HCP." HCP Vol. IV(B1), p. 41.

(3) This HCP conflicts with the principles established in the FWS' own Marbled Murrelet Recovery Plan, Murrelet Critical Habitat Designation, Consultation Handbook and HCP Handbook.

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XIV. The HCP and the FWS' Issuance of the Proposed ITP Will Contradict the Best Available Scientific Evidence

(2) Statements that residual "scattered so that they do not constitute potential habitat for the marbled murrelet" are contradicted by the position of the preeminent murrelet scientific organization, the Pacific Seabird Group (PSG).

(3) PL monitoring plan doesn't conform to the PSG protocol.

(4) Best Available Scientific Evidence disproves the statement that "amount of [murrelet] habitat on HRSP was at least 5,000 acres, and could be as much as 15,000 acres." Similarly, the EIS recitation of the over-estimate by Ralph and Miller (1997) of the total amount of the murrelet habitat in HRSP and percent of murrelets occupying HRSP are both unsubstantiated and not based on the best available scientific evidence. See Nelson comments, submitted herewith.

(5) The EIS does not use best available evidence when it depends on Ralph and Miller (1998) unsubstantiated reports that approximately 31 percent of all occupied detections in the Bioregion came from the Headwaters Forest. (EIS 3.10-45.)

(6) Plans to allow logging during nesting season conflicts with BEST AVAILABLE SCIENTIFIC EVIDENCE and with HCP's (p. 10) own admission that "In California, they estimated that the breeding season lasted approximately170 days, with incubation beginning at earliest on 24 March, and the last chick leaving the nest on September 9."

(7) The BEST AVAILABLE SCIENTIFIC EVIDENCE contradicts HCP statement (Vol. IV(B1), p. 15) that "It is not expected that this loss will continue; much of the remaining habitat is now protected on reserves in federal and other lands. It is expected that the majority of marbled murrelets will continue to be protected on these landscapes, under the Northwest Forest Plan (sometimes hereafter referred to as FEMAT) and approved Habitat Conservation Plans.". See Biological Opinions submitted herewith.

(8) Similarly, contradicted by BEST AVAILABLE SCIENTIFIC EVIDENCE is EIS assertion that "with respect to cumulative impacts...federal and state agencies will avoid cumulative significant long term effects on murrelet populations that could potentially threaten the three -state or zone populations. (EIS p. 3.10-160.) The HCP itself admits that the Northwest Forest Plan will on its face allow loss of 11% of current murrelet nesting habitat (ie only 89% conserved) (HCP p. 21.) Moreover see summary of Biological Opinions submitted herewith and referenced above.

(9) Failure to survey potentially suitable murrelet habitat contradicts BEST AVAILABLE SCIENTIFIC EVIDENCE, including the Marbled Murrelet Recovery Plan.

(10) HCP Statement that "The population is declining at a rate equivalent to 4-6% annually" is contradicted by BEST AVAILABLE SCIENTIFIC EVIDENCE. Population declining at even greater rate. See analysis of Amanda Stanley submitted herewith.

(11) HCP statement (p. 25) that "Harvesting under the MMCA strategy is restricted to the smaller, most-fragmented or already partially harvested old growth and residual areas" is contradicted by App N, p.10 description of fragmentation of contiguous stands.

(12) FWS agency abandoned its earlier positions on murrelets which had been based upon the best available scientific evidence.

(13) The EIS is not based on the best available scientific evidence it quotes Divoky and Horton (for the proposition that "breeding murrelets would typically be expected to disperse within a distance of one km". See Nelson comments, submitted herewith.

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XV. Unlawful Delegation of Agency Authority.

(A) CDF's obligations as defined at IA §2.4

(B) Removal of trees for road use as defined at IA §3.1.1(a)

(C) Removal of timber from MMCAs as defined at IA §3.1.1(b)

(D) Watershed analysis by PL as defined at IA §3.1.3.1(a)

(E) Determination of material changes in PL's funding resources, IA §3.3

(F) Annual Report provision for limiting certification, IA §3.4.2

(G) PL's consent for additional mitigation or changed circumstances, IA §6.1.6.3 - 6.1.4.2.

(H) Limitation upon Services for additional conservation responding to Unforeseen Circumstances to MMCA areas. IA §6.1.6.5.2

(I) DFG agree that Vol. IV(H) contains complete list of mitigations, and otherwise limit mitigations. IA §6.2.3.1, 6.2.3.3, 6.2.4.2.

(J) Director may designate duty to find Unforeseen Circumstance, if designation to non-governmental entity. IA §6.2.4.1

(K) DFG to have burden of demonstrating that HCP measures not adequate to avoid take. IA §6.2.6.

(L) Subsequent 2090 opinions to conform to HCP. IA §6.2.7.

(M) FWS and NMFS not require any new conservation or mitigation. IA §6.3.1(c).

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XVI. Comments on HCP/EIS compliance with NEPA/CEQA/CESA/ESA for other species

Substantial evidence proves that for Pileated Woodpecker, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (Gonzales, DFG, 3/17/97). Inadequate analysis in EIS/EIR of impact and mitigation..

Substantial evidence proves that for Pacific Fisher, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS, 3/18/97 Review of Biological Info on Pacific Fisher relative to PL SYP Proposal; see also Amedee Brickey, FWS, 5/20/97 memo re mitigation measures for Pacific Fisher in HCP). Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for Marten, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS, 3/18/97 Review of Biological Info on Marten relative to PL SYP Proposal). Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for American Peregrine Falcon, Bald Eagle, Bank Swallow, Burrowing Owl, California Red Tree Vole, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (DFG Mark Stopher 4/14/97 memo to Vicki Campbell, NMFS; see also Gonzalez, DFG 3/24/97 Table on Recommended Mitigations for Bald Eagle; see also DFG 10/17/95 Staff Report on Burrowing Owl Mitigation.) Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for Western Snowy Plover, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS Correspondence with Daniel Burford and Amedee Brickey re Plovers and Gravel Operations; see also FWS 2/23/97 memo to Tuchman; see also DFG Mark Stopher 4/14/97 memo to Vicki Campbell, NMFS.) Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for Southern Torrant Salamander, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS/DFG, 3/17/97 Properly Functioning Conditions for Southern Torrant Salamander; see also FWS 2/23/97 memo to Tuchman). Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for Tailed Frog, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS/DFG, 3/17/97 Properly Functioning Conditions for Tailed Frog; see also FWS 2/23/97 memo to Tuchman). Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for Foothills Yellow Tailed Frog, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS/DFG, 3/17/97 Habitat Needs). Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for Western Pond Turtle, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS/DFG, 3/17/97 Habitat Needs; see also FWS 2/23/97 memo to Tuchman). Inadequate analysis in EIS/EIR of impact and mitigation.

Substantial evidence proves that for Vaux's Swifts, HCP 1) fails to include adequate mitigation and 2) will result in appreciable reduction in survival and recovery. (FWS 3/20/97 Evaluation of Proposed Mitigation relative to PL SYP proposal). Inadequate analysis in EIS/EIR of impact and mitigation.

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XVII. Comments on the Draft Implementation Agreement.

Recitals and Purposes

p.1

(A) A map of the Plan Area, showing all the Covered Lands, is not attached as Exhibit "A", thus depriving the public of the ability to review. More importantly, a legal description (township, section, range) of the Covered Lands must be provided for this contractual document.

p.2

(B) The term "Headwaters Reserve" not defined. In addition, this Recital does not accurately and completely state the terms of the September '96 Agreement.

p.3

(H) The IA states that "To obtain an incidental take permit, the applicant must submit a habitat

conservation plan describing, among other things, the steps the applicant will take

to minimize and mitigate to the maximum extent practicable the impact of such

taking." This is an incomplete description of the legal requirements of the requirements for an HCP. This section should include a complete description of the statutory and regulatory requirements.

p.4

(J) The measures described in the HCP will neither "minimize and mitigate to the maximum

extent practicable" nor "fully mitigate" the effects of take incidental to PALCO's Covered Activities.

(K) FWS and NMFS are violating their duties under section 7 of the ESA and under NEPA by agreeing that "no additional conservation or mitigation will be required of PALCO to minimize and

mitigate the impacts of Take of the Covered Species on the Covered Lands."

p.5

Definitions

"Adaptive Management" How are "these evaluations used over time to adapt both the management directives and techniques" for marbled murrelets, northern spotted owls and all other covered species 1) given the FWS & NMFS commitment not to require from PL any additional conservation or mitigation, 2) given the Services "no surprises" policy, and 3) given the Services "safe harbor" policy?

The "Additional Lands" are not identified on Exhibit "A." Additional lands should be identified by legal description not by reference to a map. By agreeing that "Additional Lands" "will become Covered Lands to which the Wildlife Agencies will apply the Take authority granted by the Wildlife Agencies" the Services have arbitrarily foreclosed their discretionary authority to deny such actions at the time PL applies for such federal agency action.

"Assurances Rule" are not attached as Exhibit "I," depriving public of review.

p.6

"Changed Circumstances" as defined at Volume IV, Part H of the HCP specifically provides that the landowner is only expected to implement the HCP Measures and no others, even if additional conservation and mitigation measures are deemed necessary to respond to adverse changes in circumstances. This definition/provision violates the applicant's duty to mitigate to the maximum extent practical, the Services' Section §7(a) obligations, and the duties under NEPA/CEQA to prepare an Supplemental EIS/EIR when there is a change in circumstances that causes a new significant adverse impact

"Conservation and mitigation" have specific legal definitions which the Services must adhere to rather than unlawfully replacing the Congressional intent of these terms with "commitments" agreed to by the applicant.

"Covered Activities" are not described in Volume I, Part A of the HCP. Moreover, this IA must include a complete and thorough list of all covered activities so that the public, the agencies and PL understand what is covered by this incidental take permit (ITP) and what is excluded. Omission of a detailed definition prevents the public from understanding the project and its impacts.

p.7

"Covered Lands" are not depicted on Exhibit "A".

The list of Covered Species is not included as Exhibit "B". Inclusion of non-listed species must not be within the definition of covered species.

"Federal Listed Species" should only include those currently listed as threatened or endangered by State and federal governments. The agencies abuse their discretion under NEPA/CEQA and the ESA to include those listed "during the term of the permit" under this definition.

p.8

MMCAs - Exhibit C not circulated for public review, thus preventing public review and analysis. Moreover, reference to Map25, HCP volume V is inadequate. Only a legal description will suffice to inform the public, the agencies and PL of what lands are included.

MMCA Conservation Activities are not listed at HCP I(A).

"Operating Conservation Program" is defined so vaguely as to prevent public review of the project, its impacts and proposed mitigations. HCP Vol. IV, Parts A-E contains numerous terms and statements which could not possibly represent the proposed conservation program. Similarly, HCP Vol. IV(H) includes no measures to deal with changed circumstances.

p.9

The "Plan Area" is not depicted on Exhibit A. The IA must include a legal description of the Plan Area rather than a vague reference to a map, so that the public and the agencies can comprehend the scope of the project.

"State Listed Species" should not include Candidates as this violates CEQA and CESA.

"Unforeseen Circumstances" The definition should not include "and that result in a

substantial and adverse change in the status of one or more of the Covered Species."

p.10

Section 2.1.1. / 2.2.1

- Findings (i-vi) are contradicted by substantial evidence and reached without proper environmental analysis or public disclosure.

- Further, the Services may not find that the HCP satisfies the Section 1O(a)(2)(B) permit issuance criteria for each "Covered Species which is not currently a Federal Listed Species." The Services do not have before them today the evidence regarding Covered Species that will available at the time the species is listed. To make such a finding will violate the mandate to use the best available scientific evidence and to consider cumulative impacts. Species which today are Other Species of Concern, or State listed species, but not currently Federally Listed Species, cannot be swept under the rug.

- Also, because the Services make the claim that HCPs are "conservation measures," the Covered Species may forever be denied any future classification as "federally listed". Thus as a practical matter this HCP plan may be the last environmental consideration these Covered Species receive, contrary to the intent of Congress.

Section 2.1.2 / 2.2.2

- This IA must include a provision that " The Federal Permit will be conditioned on PALCO's specific and timely compliance with each term and condition of the Federal Permit, the HCP, and this Agreement." The San Bruno Mountain HCP included such a provision in its incidental take permit (ITP), which Congress declared a "model."

- The Services' obligations also include the duty to revoke the permits if PALCO does not specifically comply with each term and condition of the Federal Permit, the HCP, and this Agreement. See ESA §10(a)(2)(C).

p.12

Section 2.3.1

- Findings (i-xiv) are contradicted by substantial evidence and reached without proper environmental analysis or public disclosure. This is particularly true with respect to finding #ix - that will Avoid Take of Fully Protected Species.

p. 14

Section 2.3.2

- The State Permit must be conditioned on Palco's full and timely compliance with the terms and conditions of the State Permit, the HCP, and this Agreement.

- DFG Obligations include the duty to Revoke the 2081 permit if such conditions and terms are not being met.

p.15

Section 2.4

- CDF obligations must include the commitment by CDF to faithfully implement the terms and conditions of the HCP/SYP and the Permits, and to deny PL's THPs which do not comply with these terms and conditions.

- Approval of the SYP is contradicted by substantial evidence and reached without proper environmental analysis or public disclosure.

- Delete "shall cooperate with Palco to implement this Agreement." Replace with "CDF shall cooperate with federal and other state agencies to implement this Agreement."

Section 3.1

- This section is woefully inadequate as it includes no description of PALCO obligations to fish and wildlife species, other than the marbled murrelet. Pursuant to 16 USC 1539(a)(2)(A)(iv) & 1539(a)(2)(B)(v) this IA must define any and all PALCO obligations, including all those measures deemed necessary by the Services to ensure survival and recovery of the currently listed species.

Section 3.1.1

- The IA must include a legal description of each grove. Map references are inadequate. Legal descriptions (township, range section) are not "described in detail in Volume IV, Part B of the HCP."

- The IA is inaccurate in that it must conform to AB1986 by describing both Owl and Grizzly Creek as MMCAs. As circulated to the public, this draft HCP suffers from an indefinite project description.

p.16

- The IA does not incorporate changes required by AB1986 as is reflected by the IA statement that "The Grizzly Creek MMCA shall be deemed not to be a MMCA until and unless the Grizzly Creek MMCA is substituted for the Owl Creek MMCA pursuant to section 3.1.2 of this Agreement." Thus, the document prevents adequate public review and comment, and at a minimum must be recirculated.

Section 3.1.1(a)

- The IA must specify the "restrictions and conditions" of the MMCA Conservation Activities. The reference to "restrictions and conditions identified in [HCP] Volume I, Part A and Volume IV, Part B" is inadequate as either missing entirely or so broad as to thwart public review and analysis.

- The "MMCA Conservation Activities" listed at IA §3.1.1(a)(ie #1-3, 5-7, & 10) are detrimental to all Covered Species and their habitats. A determination that such activities are beneficial is contradicted by substantial evidence and reached without proper environmental analysis or public disclosure.

- The IA must list the existing, active roads that will be used, maintained and stormproofed. Reference to "roads depicted on Volume V, Map 8" is insufficient to provide for public review and analysis.

- Removal of trees for road use, maintenance and stormproofing should only be upon prior written concurrence of FWS and NMFS. Removal of trees on such vague terms as specified here leads to an indefinite project description and prevents public analysis of the potential impacts.

- Because of significant adverse environmental impacts no mining should be allowed at Allen Creek. The mining is not "particularly described at [HCP] Volume I, Part A," thus depriving the public of review and analysis.

- Because of significant environmental impacts no "borrow pits," nor clearance of lands in association with such pits should be allowed.

- Scientific surveys are not "particularly described at [HCP] Volume I, Part A."

p.17

- Because of significant environmental impacts no fuel removal should be allowed.

- Approval of this HCP permit prior to development and approval of the Fire Management Plan prevents review of the entire project and impermissibly defers a potential mitigation.

- Fish releases are not "particularly described at [HCP] Volume I, Part A."

- Because of significant environmental impacts no hunting should be allowed.

Section 3.1.1(a)

- The section "Except as provided in subsection (b) of this section 3.1.1, no activities other than the MMCA Conservation Activities listed in this section, as conditioned and restricted in Volume I, Part A and Volume IV, Part B of the HCP, shall be allowed within any MMCA unless the Wildlife Agencies determine, following compliance with all applicable laws and regulations including NEPA and CEQA, that such activities are compatible with protection of, or are beneficial to, the marbled murrelet and its habitat and the other Covered Species and their Habitats consistent with the HCP" is inadequate. The phrase "consistent with the HCP" should be stricken because it elevates consistency with the HCP to conformance with statutory provisions of the ESA, NEPA and CEQA. "Compliance with all applicable laws" should reference the State and federal Endangered Species Acts, including the prohibition on adverse modification of critical habitat.

Section 3.1.1(b)

- Any removal of timber from an MMCA should not be allowed. Any application for such activity should be through a permit amendment. The Wildlife Agencies determination of whether to allow such activity is a federal agency action that must also avoid any adverse modification of critical habitat. Moreover, there has been no analysis of impacts of this provision in the draft EIS/EIR or in the draft HCP/SYP.

p.18

Section 3.1.1(b)

- Strike the provision "The Wildlife Agencies recognize, however, that the MMCA Conservation Activities identified in subsection (a) are allowed pursuant to this Agreement and the HCP, and therefore will not require any further compliance under NEPA or CEQA on the part of the Wildlife Agencies." This provision violates the statutory sections requiring supplemental EIS/EIRs where significant adverse impacts are disclosed. Further, the EIS fails to analyze this provision.

Section 3.1.1(c)

- PL is obligated to timely complete each provision of the permit and the IA. Therefore, because they undercut this basic ESA §10 principle the following must be deleted:

- Delete the phrase "to the extent known."

-Delete the sentence "The absence of the description of an MMCA Conservation Activity in an Annual Report shall not preclude PALCO from undertaking such Conservation Activities."

Section 3.1.2

- "Substitution" not defined.

- "Salvage logging" must be prohibited in throughout both Grizzly Creek and Owl Creek groves.

- Inclusion of Grizzly Creek as an area protected permanently for the life of the permit should not require an amendment to the IA.

- The phrases "Covered Activities on the Owl Creek MMCA" and "Covered Lands which are not MMCAs" are so vague and indefinite that it is impossible to know what is being contemplated here for the Owl Creek MMCA.

- By permitting PL to "elect to substitute Grizzly Creek MMCA for Owl Creek prior to the Effective Date" the project description remains unstable and thus avoids proper environmental analysis and public review.

- This section should be removed in light of AB1986.

p. 19

Section 3.1.3

- Each of the "conservation, mitigation and management measures" PL will be required to implement must be spelled out in this IA in order for the public, PL and the agencies to understand PL's enforceable obligations in violation of NEPA, CEQA and §§7 & 10 of the ESA. Reference to "HCP's Operating Conservation Program, including the measures provided for under the Adaptive Management and Changed Circumstances sections of the program" is insufficient because the Operating Conservation Program is broadly defined as HCP Vol. IV (A-E, H). These sections contain numerous provisions which are not intended as mitigation or conservation measures (ie Vol. IV(B)(6) is a discussion of El Nino). Therefore, it is impossible for the public, the decision makers or even PL to know what it is PL is expected to implement. See also comments on definitions of Adaptive Management and Changed Circumstances, supra.

Section 3.1.3.1

- Failure to define the specific conservation and mitigation prescriptions for aquatic species violates §§7 & 10 of the ESA and constitutes an impermissible post-approval deferral of mitigation measures.

- The IA has not incorporated the provisions of AB1986

- Reference to HCP Vol.I(A) and Vol.IV(D) is inadequate as these sections contain numerous provisions which are not intended as mitigation or conservation measures. Therefore, it is impossible for the public, the decision makers or even PL to know what it is PL is expected to implement.

- The term " properly functioning riparian habitat conditions" is not defined thus preventing public review and analysis

Section 3.1.3.1(a)

- PL should not be given the discretion to decide on which watersheds to "elect to use the watershed analysis process." Nor should PALCO serve on the watershed analysis teams. That discretion must be retained by the federal agencies and should be decided before the permit is granted or denied.

p.20

- PL should not be given the ability to disagree with the Wildlife Agencies. To do so elevates the applicant to the position and authority of the government official.

- The IA as written allows a timber prescription to be deemed approved, even if all Wildlife Agencies disagree with PL, unless the Regional Administrator, the Regional Director AND the Director all affirmatively reject the proposed prescription within 45 days of being notified of the disagreement. This provision violates ESA section 7 of the ESA.

- The mitigation measures which PL is expected to implement must be described in sufficient detail in this IA. References to HCP "Volume IV, Part D, Section 1, 3, & 4" are inadequate for the reasons provided above.

Section 3.1.3.1(e)

- There is no description of how the "provisions of the watershed analysis process referred to in this section rely on the State of Washington Department of Natural Resources process" Failure to provide this information in the HCP or EIS/EIR prevents informed decision making and public participation.

p.21

Section 3.1.4

- The terms "original HCP", "amendments thereto", and "modification" are undefined. State specifically what are you talking about so the public and decision makers can evaluate the project and its impacts.

- It is contrary to ESA sections 7 & 10 to allow "increase in Take beyond that analyzed in the HCP as a permit amendment."

Section 3.2

- The term"direct control of PALCO" is undefined. State specifically what are you talking about so the public and decision makers can evaluate the project and its impacts.

- The phrase "...and subject to the conditions of the Federal Permit, the State Permit, the HCP and this Agreement" is meaningless given that the conditions are not specified in this Agreement.

- This IA must include a complete and thorough list of all "Covered Activities" so that the public, the agencies and PL understand what is covered by this ITP and what is excluded. Omission of a detailed definition prevents the public from understanding the project and its impacts.

Section 3.3

- The applicant has not "ensured" that adequate funding will be provided. The phrase "...such funds as may be necessary to fulfill its obligations under the HCP" does not specify the amount or source of such fund, nor what the Service consider "the obligations under the HCP." This omission violates the ESA, NEPA and CEQA.

- The funding sources that PALCO will use are not "described at Volume I, Part A of the HCP."

- For a 50 year permit to kill endangered species, the provision which allows PL to defer demonstrating that it has sufficient funds violates ESA §10(a)(2)(B)(iii).

- The ESA requires a demonstration be made as part of the HCP application that sufficient funds exist to carry out the required mitigation and conservation measures for the life of the permit.

p.22

- $1.5 million is an arbitrary number and there is no evidence to support a finding that this amount is adequate funding for the plan. Moreover, adequate funding for the plan should be in the form of a bond which control is vested in the Wildlife Agencies for the life of the permit.

- "A material change in PALCO's funding resources" is a foreseeable change in circumstances which must be analyzed in the EIS/EIR.

-Defining "A material change in PALCO's funding resources" as "any change in the financial condition of PALCO which will adversely affect PALCO's ability to manage the Covered Lands" is so broad and vague that it is arbitrary and capricious. Moreover, to the extent that this determination may be made by PL, the agencies have abrogated their ESA duties.

Section 3.4.1

- The IA must specify (narratively and with defined criteria) each of the monitoring steps PL is to implement. Reference to "PALCO shall implement the monitoring program described at Volume IV, Parts A-F of the HCP" is so vague and overbroad as to make it impossible for the public, the decision makers or even PL to know what it is PL is expected to implement.

Section 3.4.2 Annual Reports

- To the extent that the IA contemplates requiring survey and data collection for only certain Covered Species it violates the cumulative impact standard and best available scientific evidence standards of NEPA/CEQA and the ESA respectively.

- The IA fails to define what is meant by the "Operating Conservation Program" in this context. The IA definition for the "Operating Conservation Program" is only a reference to HCP Vol. IV A-E, & H.

- The IA must specify what surveying "results" PL must submit.

- Limiting Certification "to the best of my knowledge" permits an applicant an escape from any liability for failure to collect the required information. Given PL's history of repeated Forest Practice Act and ESA violations it is an abuse of the agencies discretion to include such a provision.

- The HCP/SYP and IA fail to comply with CEQA's requirement for mitigation monitoring and reporting.

p.23

Section 3.4.2

- Because inclusion of the following violates the ESA, CEQA and NEPA, strike the following terms:

- "best efforts"

- "as least intrusive as possible to PALCO operations"

- " shall not require PALCO to prepare any additional reports"

- Requiring the Wildlife Agencies to "contact PALCO sufficiently prior to releasing any [claimed Confidential] Information" so as to allow PL to "protect the Confidential Information from release" violates the Freedom of Information Act, the California Public Records Act, and the ESA. There is no such provision in the law. PL has used such a claim in the past to attempt to hide information of species numbers and distribution. Moreover, here "Confidential Information" is circuitously defined as information which PL has designated as Confidential Information.

p.24

Section 3.4.3

- Wildlife Agencies must be able to inspect not just "any records or documents required to be kept under the HCP" but instead "all records supportive of assertions in the HCP and Annual Reports."

-Strike "conducted in a manner to be as least intrusive as possible to PALCO operations."

Section 4.0

- The IA must include the specific portions of the HCP which the Agencies intend to have PL implement. As noted above the IA fails to delineate PL's specific obligations and the lands involved. The draft HCP is a one-sided document authored by the applicant, which contains numerous irrelevant and unsubstantiated statements. Given this, the lazy approach of incorporation by reference of the entire HCP violates the ESA.

p. 25

Section 5.1

- Extension of the ITP Boundaries should only be considered a permit amendment in order for the Services to comply with the ESA.

Section 5.2(a)

- Strike "Federal and State Permits will identify all Covered Lands." The IA should identify all "Covered Lands" and the Federal and State Permits will incorporate the IA by reference. All covered lands and additional lands must be identified by a legal description. Reference to Map at Volume V, Map 4 is insufficient for the public to review and analysis the project.

- The provision which only limits take of northern spotted owl on additional lands during the first 5 years of the Permits infers that take is permitted where lands are acquired as of Year 6, which will not have been analyzed as part of this permit issuance violating the cumulative impact requirements of ESA, CEQA, and NEPA.

- If northern spotted owls are located a supplemental EIS/EIR and supplemental BO need to be prepared rather than allowing PL to simply add northern spotted owls to the Baseline.

- The require for additional surveys is a permit condition and should be explicitly stated.

- The term "Baseline for northern spotted owl" is not adequately defined, thwarting public review and analysis.

p. 26

Section 5.2(b)

- "Procedure to include Additional Lands as Covered Lands" should meet all ESA section 10 and section 7 provisions. The notice as described is insufficient. This provision prevents a stable project description. Significant adverse and cumulative impacts may result which must also be analyzed pursuant to NEPA and CEQA.

Section 5.2(c)

- The provision which allows PL to "apply conservation and mitigation measures" to Additional Lands only "until impacts have been fully mitigated," and the provision which implements conservation "unless and until mitigation is complete" both contemplate that mitigation may terminate before the Permit expires. This provision has not been analyzed in the EIS/EIR, nor explained as to why it is mitigation to the maximum extent practicable.

- The provision which allows PL to terminate its HCP obligations upon relinquishment of the permit has not been analyzed in the EIS/EIR, nor explained as to why it is mitigation to the maximum extent practicable.

p. 27

Section 5.2(c)

-PALCO need not own Additional lands, only have proof of right to engage in applicable "Covered Activities" relevant to the parcel in order to have the additional lands fall within the within scope of the ITP. This provision makes the project description unstable and has never been analyzed in the EIS/EIR.

Section 5.3.1(a)

- Transfer of ownership or control of Covered Lands, outside MMCAs must include approval by the Services as an amendment to the Permits, and not as "Minor Amendments". As such these transfers are subject to Section 7 consultation, as well as NEPA and CEQA compliance.

p.28

Section 5.3.1(c)

- Determinations of whether PL is required to provide additional mitigations should be made after PL has applied for such an amendment and the Services have complied with ESA §7, NEPA, and CEQA.

Section 5.3.2

- "Disposal" of Covered Lands must include approval by the Services as Permit Amendment , and not simply by PL filing a notice and a map. These transfers are subject to Section 7 consultation, as well as NEPA, and CEQA compliance.

- Under 5.3.2(a), the fifth condition reads "the addition of the acquired tract as Covered Lands will not result in impacts not analyzed and mitigated under the HCP, or any amendments thereto, and will not result in unauthorized Take under the Federal and State Permits". This demonstrates the need for a supplemental EIS/EIR at the time of such disposal.

p. 29

Section 5.3.2(a)(i)

- Use of the terms "legal control" and "proof of the right to engage in the applicable Covered Activities" indicate that this Permit is intended to apply to Additional Lands where PL obtains the right to cut timber, or engage in any other "Covered Activity." This provision makes for an indefinite project description, particularly where no legal description has been provided of the additional lands. The environmental impacts of these provisions have not been analyzed under the EIS/EIR.

Section 5.3.2(b)

- There is no statutory authority to allow 500 acres to be removed from the project without compliance with ESA/NEPA/CEQA and all other applicable laws.

p30

Section 5.5

- Exhibit "D" not included, thus depriving the public of the ability to analyze the project and its impacts. Any disposal of MMCAs or portions thereof must be processed as a Permit Amendment. These transfers are subject to Section 7 consultation, as well as NEPA, and CEQA compliance.

p.31

- Reference to conditions or mitigation measures on the remaining Covered Lands specified at HCP, Volume I, Part A frustrates public review and analysis because Part A does not describe any such conditions or mitigation measures.

Section 6.1.1

- Application of this permit to Covered Species which are not currently listed as a Federal Listed Species is an abuse of agency discretion as it violates ESA §7 duties, prevents a cumulative impact analysis under NEPA/CEQA, and thwarts any future supplemental EIS/EIR.

page 32

Section 6.1.3.

Limiting the Services ability as a result of future §7 consultations to "impose any new, additional or different conservation or mitigation measures on PALCO beyond the requirements provided for under the HCP and this Agreement" violates the Services' Section 7 duties and prevents analysis of cumulative impacts.

Section 6.1.4

- This provision violates the ESA and is null and void: Congress has not granted the USFWS nor NMFS the authority to lift critical habitat designation for the marbled murrelet for so long as the Federal Permit remains in effect.

- HCPs such as this are not conservation measures that eliminate the need for critical habitat designation. Therefore, the Services can not consider this HCP as a conservation measure in their preparation of any proposed determination of critical habitat for any other Covered Species under their respective jurisdictions or revision of critical habitat for the MURRELET.

- Congress prohibits federal agencies from adversely modifying critical habitat. Thus, upon critical habitat being designated for any Covered Species, additional mitigations may be required to avoid adverse modification of such critical habitat, despite PALCO's implementation of the terms of the HCP.

page 33

Section 6.1.5.(b)(2)

- This subsection turns the ESA duty to "minimize and mitigate adverse impacts to the maximum extent practicable" on its head. This subsection provides minimization of economic impacts to PL, not minimization of environmental impacts to species. Therefore, this provision is null and void.

Section 6.1.6.1

- The application of the "No Surprises" Rule to the Permit, IA and the HCP violates ESA §7 and the cumulative impacts analysis required under the ESA, NEPA and CEQA. Federal Agencies have a Section 7(a)(1) duty to avoid jeopardy of species. Thus, additional information of significant adverse impacts is a valid ground for a permit modification.

p.34

Section 6.1.6.3.

- The murrelet's continued decline is a foreseeable circumstance. In addition, the Services may not allow PL to elect which regulations to comply with. To do so is arbitrary and an abrogation of federal duties.

Section 6.1.6.4.1

- All potential Changed Circumstances need to be analyzed as part of Cumulative Impacts.

- HCP Vol. IV(H) contains an incomplete list of Changed Circumstances.

Section 6.1.6.4.2

- Volume IV, Part H of the HCP does not contain any such conservation and mitigation measures referenced in this subsection. Thus the IA needs to state explicitly what the conservation and mitigation measures will be.

page 36

Section 6.1.6.5.2

- The provision which limits additional conservation and mitigation measures violates ESA §7, required cumulative impacts analysis, as well as thwarts the CEQA/NEPA provisions for supplemental environmental review, particularly where this provision arbitrarily limits the additional conservation and mitigation measures to the current MMCAs, which are the only "Conserved Habitat Areas."

page 37

Section 6.1.6.6.

- The provision stating that "The Services ..have significant resources and authorities that can be utilized to provide additional protection to Covered Species" is unsubstantiated and needs to be analyzed in the DEIS/DEIR.

Section 6.2.2.(a)

- To the extent this Section in the IA contractually takes away the State's discretion to deny an incidental take permit, the IA is void.

page 39

Section 6.2.4.1.

- This Section should be changed to specify that the "Director" can not designate the responsibility of making a finding "that Unforeseen Circumstances exist with regard to any Covered Species with the jurisdiction of CDFG" to a Registered Professional Forester or any other non-governmental entity.

p.41

Section 6.2.5(a)

- This Section is contradicted by the Best Available Scientific Evidence.

Section 6.2.5(b)

- The wording in this Section should be deleted to void any reference whereby CDFG has the burden of demonstrating adequacy of measures in the HCP as this wording is contrary to CESA.

Section 6.2.6(a)

- This provision is contradicted by the Best Available Scientific Evidence.

Section 6.2.6(b)

- The wording in this Section should be deleted to void any reference whereby CDFG has the burden of demonstrating adequacy of measures in the HCP as this wording is contrary to CESA.

p.42

Section 6.2.7

- See 6.1.3. comments.

page 43

Section 6.2.8.2.

- Any CDFG finding that the HCP furthers the protection of Covered Habitat within the Plan Area and reduces the need for listing Habitat Coverage Species is unsubstantiated by the evidence.

- The requirement that CDFG "shall" issue an Incidental Take permit under the terms of this subsection is an arbitrary abrogation of discretion.

- The listing of any new species is a foreseeable change in circumstances.

page 44

Section 6.3.1(a)

- This subsection is an arbitrary abrogation of CDFG's duties, particularly regarding cumulative impacts and the need for supplemental EIRs under the circumstances described herein.

page 45

Section 6.3.1.(b) and (c)

- The IA fails to recognize that the duty to analyze and implement mitigation measures remains and that by the terminology specified in these subsections, the HCP is elevated to the same level as the statutes cited.

page 47

Section 7.1.2(4)

- The additions and disposals of Covered Lands are not Minor Modifications, but should be processed as Permit Amendments.

Section 7.2.

- The General Federal Permit Amendment Process outlined in the IA is inadequate because it does not meet the so-called Congressional model HCP (San Bruno Mountain HCP) in so much as those minimum requirements are not met.

page 48

Section 7.2.3.

- The IA provision allowing Amendment of the Permit to Allow Covered Activities Within MMCAs should be analyzed as reasonably foreseeable change..

Section 8.1

- The stated duration of the IA/HCP to remain in effect for 50 years is unsubstantiated.

page 49

Section 8.2

- This subsection contains vague language regarding a "non-agreement between PALCO and the Agencies." This lack of definition causes the project description to be unstable.

- Any discussion of any suspension of PALCO's permit should include a complete prohibition against logging for the duration of the suspension.

- The limitations placed on USFWS and NMFS by the terms of the IA ignore their statutory duty to revoke the Federal Permit if permit conditions are not met under 1539(a)(2)(C).

- The wording in this subsection regarding revocation or suspension of the Federal Permit only after an adjudicatory process is contrary to the ESA.

- The wording discussing assurances made in section 6.1.6 of this Agreement conflicts with section 6.1.6 as 6.1.6. says no additional mitigation is required.

- Another misstatement is where the IA states "PALCO shall remain obligated to mitigate for the impacts of all Take that occurred under the Federal Permit prior to its revocation in accordance with section Volume I, Part A of the HCP", yet there is no mitigation included at that section.

page 50

Section 8.3

- Any suspension or revocation under this subsection that "may apply to the entire State Permit and Streambed Alteration Agreement..." must apply to the whole permit.

- The HCP does not override final Regulations.

Section 8.3.1.

- Written notice under this subsection shall not required by CDFG.

- During the period of suspension PALCO must be prohibited from any logging or logging related operations.

page 51

Section 8.3.1.1

- The word "reasonable" should be stricken from this subsection.

Section 8.3.2

- The reference here to Section 6.3(a) is unclear as there is no such section.

- The State Permit or Streambed Alteration Agreement should be revocated for any violation.

- "Effectiveness" is vague and undefined.

page 53

Section 8.5.2

- The mitigation discussed should also take into consideration in its analysis the habitat conditions of residual old growth stands destroyed outside the MMCAs.

p. 56

Section 9.1(4)

- Inclusion of language to which agencies don't agree make for an unstable project description.

page 57-58

Section 9.2.1(c)

- This section should be amended to read "The requirement that the Agencies meet and confer with PALCO prior to taking an action described in Section 9.2.1(a) shall not apply to disputes arising...where the applicable Agency determines that the action must be taken immediately to avoid violation of applicable law, including jeopardy..., or adverse modification of Critical Habitat.

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XVIII. Conclusion.

For all of the reasons set forth above, the Sierra Club and EPIC request that the agencies not certify the EIS/EIR as complying with NEPA or CEQA and that PL's application for the federal and state permits be denied.

Thank you for your attention to these comments.

Sincerely,
Brian Gaffney

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Bibliography of Evidence Submitted Herewith

2. S. Kim Nelson 11/12/98 letter to USFWS and CDF

3. USFWS Recovery Plan for the Marbled Murrelet

4. USDA Ecology and Conservation of the Marbled Murrelet

5. Status -- Carter and Morrison

6. Final Rule -- Marbled Murrelet Listing

7. Final Rule -- Marbled Murrelet Critical Habitat Designation

8. Northwestern Naturalist (Spring 1995)

9. Stanley 10/12/98

10. Marzluff

11. Birds of North American no 276 (1997)

12. Abstract p. 40 Re: 1997 Kure Oil Spill

13. Viability Assessment

14. Pacific Seabird 15/7/96

15. Pacific Seabird Group (March 1994)

16. Pacific Seabird Group Technical Paper #1 (March 1993)

17. 4/14/94 Letter from Fish and Wildlife Service (Gary Miller et al) to Marvin Plenart

18. Western Forest HCP Inventory

19. Synopsis of Biological Opinions

20. Guidelines for Interpreting HCP database

21. Biological opinions (Non-HCP)

22. Biological Opinion for Washington Department of Natural Resources HCP

23. Biological Opinion for Elliott State Forest HCP

24. Biological Opinion for Simpson Timber Company HCP

25. Biological Opinion for Weyerhauser-Millicoma Tree Farm HCP

26. Biological Opinion for Murray-Pacific - Mineral Tree Farm HCP, and Amendment

27. Biological Opinion for Regli Estate HCP

28. Biological Assessment/Evaluation for Arcata BLM District

29. Other Species Information

30. NMFS Analysis draft 5/22/98

31. 1/31/96 Letter from Brian Gaffney to Bruce Babbitt et al, regarding Pacific Lumber Company Application for Incidental Take Permit

32. 1/24/97 Letter from Brian Gaffney to Bruce Babbitt et al regarding U.S. Department of Agriculture's Acceptance of Payment from Pacific Lumber Company and Failure to Timely Respond to FOIA Requests

33. 6/25/97 Letter from Brian Gaffney to Bruce Babbitt et al regarding Agency Discretion in Processing Pacific Lumber Company's Habitat Conservation Plan

34. 8/8/97 Letter from Brian Gaffney to Phil Detrich et al regarding Pacific Lumber's Claim of Economic Impracticability

35. 8/24/98 Letter from Brian Gaffney to Bruce Halstead regarding Agency Actions Prevent Adequate Public Comment. Permit Applications #PRT-82950 and 1157 PALCO Draft SYP/HCP

36. 11/12/98 Letter from Brian Gaffney to Mark Stopher regarding Submission of Comments on Pacific Lumber Co.'s HCP/SYP

37. Documents Received from U.S. Fish and Wildlife Service and National Marine Fisheries Service as a result of Freedom of Information Act requests.

1 Biological Opinion #1-3/7-90- F-2 and subsequent reinitiations of consultation determined jeopardy to murrelets as USFS Section 318 timber sales.

2 A summary of each of these Biological Opinions is included herein. These biological opinions originated from FWS Region One (Pacific Northwest). The numbers presented herein may not reflect all of the "take" and loss of suitable habitat to the extent the FOIA response was incomplete.

3 The range given by the numbers reflects the lack of clarity in the estimates provided by the biological opinions themselves.

4 40 CFR 1508.20 - Service should explore the specific methods for mitigating adverse impacts in descending priority, by 1) avoiding the impact, 2) minimizing the impact, 3) rectifying the impact, 4) reducing or eliminating the impact and 5) compensating the impact.

5 "On a landscape basis, forests with a canopy height of at least one-half the site-potential tree height in proximity to potential nest trees are likely to contribute to the conservation of the marbled murrelet. The site-potential tree height is the average maximum height for trees given the local growing conditions, and is Best Available Scientific Evidenced on species-specific site index tables. 61 FR 26264.

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