May 14, 2001

Board Members

State Water Resources Control Board

1101 I Street, 22^nd Floor

Sacramento, CA 95812-0100

Re: Petition of the Pacific Lumber Company for Review and Stay of Monitoring and Reporting Order No. R1-2001-10 Issued By the North Coast Regional Water Quality Control Board for Timber Harvest Plan 1-97-520 HUM

Dear Board Members,

On behalf of our members and the values at risk in the Elk River watershed, the Environmental Protection Information Center ("EPIC") herewith submits arguments in support of the North Coast Regional Water Quality Control Board's ("Regional Board's") Order Number R1-2001-19 ("Order") and in opposition to Maxxam, Pacific Lumber Company and Scotia Pacific Company L.L.C.'s (collectively "PL's") request for an immediate stay of said Order. Logging operations have caused serious degradation to the existing and potential beneficial uses of the watershed at issue in this Order, and sufficient monitoring provisions are clearly needed to prevent further damage to these uses. Both the law and the facts plainly demonstrate that by issuing the Order, the Executive Officer acted in a manner that is not only afforded to him by law, but is essential to carry out his public trust responsibilities.

Through this appeal, PL seeks not only to set aside the Order, but to also immunize itself from the fundamental laws of this state and nation and to invalidate water quality standards that have been adopted by the Regional Board and approved by the State Water Resources Control Board ("State Board"). PL's arguments are without merit, and they have not and can not meet the burden of proof obligatory to obtain a stay in this matter. Accordingly, EPIC respectfully requests the State Board uphold the Regional Board's Order, and deny PL's request for an immediate stay.

 

I. Name and Address of Designated Party

The Environmental Protection Information Center

Post Office Box 397

351 Sprowel Creek Road

Garberville, California 95542

 

 

II. Factual Background

A. The Elk River Watershed

The Elk River watershed is a tributary to Humboldt Bay and encompasses approximately 28,000 acres. The two major branches of the Elk River, the South Fork and the North Fork, are comprised of land that is almost exclusively owned by PL, with the South Fork area only recently having come into the corporation's hands.

Less than twenty years ago, the Elk River supported domestic water uses and relatively healthy populations of chinook and coho salmon and steelhead and cutthroat trout. However, the forests in the North Fork drainage were cut at an extremely rapid rate in recent years, with approximately 5,000 acres being clearcut or similarly logged between 1990 and 1997. Following this intensive logging regime, sediment pollution drastically increased in the North Fork, with 84,250 cubic yards of sediment being discharged to the river between 1994 and 1997, nearly a 550% percent increase as compared to the total amount delivered between 1987 to 1994. Native species declined significantly in number within the North Fork during this time frame, and domestic water uses where completely eliminated in areas downstream.

Although its conditions today are far from pristine, the South Fork of the Elk River contains some of the best habitat remaining in California for anadromous salmonid species and other native aquatic life. Fisheries biologists have widely recognized the critical importance of the South Fork to the coho salmon, as it contains one of the few remnant wild populations that returns to spawn in the waters of this state. Much of the land that drains into the South Fork was given to PL in 1999 as part of the infamous Headwaters Deal, and the corporation wasted no time in submitting timber harvest plans covering most of the watershed. Currently, PL has pending logging plans that cover more than 1,400 acres in the South Fork. Combined with existing problems from past logging operations, this has put the South Fork and its crucial beneficial uses at great risk of the degradation.

Acknowledging that cumulative impacts from logging operations had grown acute within the Elk River watershed, CDF in 1998 enacted an effective "moratorium" on approving additional plans by PL until monitoring requirements were met. PL has led CDF and the Regional Board on for years, and has never complied with the terms and conditions set forth by these and other agencies, including that for a monitoring plan under Section 13267. In January 2000, PL again misled the Regional Board into believing they planned to comply with these terms, committing to conduct turbidity and suspended sediment monitoring, stating: "PL is committed to develop(ing) a monitoring plan for temperature, turbidity and suspended sediment by mid-February 2000 to include comparative monitoring of water quality issues from various silvicultural practices to determine which ones should be implemented." In March 2000, PL offered excuses instead of a monitoring plan for the Elk River, but promised to do so by June 15, 2000. However, in a dramatic turnaround from these promises, PL ended up unreasonably opposing the Regional Board's request for monitoring data in the Elk River.

 

B. Timber Harvest Plan 520, the 'Hole in the Headwaters'

THP 520 was originally submitted by the Elk River Timber Company in 1997. The plan includes 705 acres of forestland that drains into the South Fork and would involve more than 100 watercourse crossings. The plan area (THP 059) is located immediately across from a slope that experienced a massive landslide after it was logged in 1996, a mass wasting event that nearly blocked the South Fork when it occurred. Both slopes are underlain by Franciscan melange and Wildcat Formations, soil types that are amongst the most unstable on the planet and are extremely sensitive to land disturbances such as logging.

Subsequent to THP 520 being proposed, PL sold the government 7,300 acres of land, including the ancient redwood forests known as Headwaters Grove and Elk Head Springs Grove. As part of the transaction, the government purchased the land adjacent to this area from Elk River Timber and gave all of it to PL except for the area immediately surrounding the South Fork. Known as the Headwaters Deal, PL also received an incidental take permit to kill, harm and harass threatened and endangered species and $380 million in taxpayer dollars.

CDF acknowledged that logging operations had caused significant cumulative impacts to the water quality of the Elk River, and, subsequent to their original approval of THP 520, they placed a "moratorium" on approving additional logging plans in the Elk River drainage until a watershed analysis is conducted and other conditions are met. Due to these water quality concerns, the Board of Forestry unanimously voted to direct CDF to consider an anticipated amendment on THP 520 as a major amendment so as to provide the public and state agencies an opportunity to review and respond.

The main hauling route originally planned for THP 520 included a road that is now on publicly owned land. As part of the Headwaters Deal, PL was granted use of this road, but only for logging operations that comply with the terms of the Deal. To avoid these standards, PL changed the plan so that it would use helicopters to fly the trees across the South Fork to the opposite ridge, and would use a different road system to transport them. Although PL asserts this would "improve" the plan so that it poses fewer risks to the environment, this is certainly not the case. In addition to the significant adverse impacts that helicopters would have on avian and terrestrial wildlife species and recreational uses, the road system PL proposes to use runs immediately adjacent to a large slide that was triggered in 1997. Since a major amendment would also require PL to bring THP 520 into conformance with the terms of the Headwaters Deal, PL submitted these and other changes to the plan as a minor amendment even though they clearly constituted major deviations. In defiance of the Board of Forestry's direction to consider the amendment as a major deviation even without these added concerns, CDF approved the minor amendment. It was only after EPIC and the Sierra Club initiated legal action against PL and CDF that PL resubmitted the amendment as a major amendment. PL also added a proposal to conduct operations during the winter season in their major amendment, but still maintains that the amendment further "reduces" associated risks. Despite their assurances to the contrary, CDF did not require the plan to be brought into conformance with the Headwaters Deal when a major amendment was submitted.

 

III. ARGUMENT

A. Substantial Evidence Shows That A Monitoring And Reporting Program Is Appropriate and Necessary for THP 520

PL makes an unconvincing argument that the cost of the monitoring program set forth by the Order does not "bear a reasonable relationship" to its needs and benefits. First, they claim the Order would be too costly and burdensome to carry out. However, this is a corporation that has cleared hundreds of acres of residual old growth redwood forests in the Elk River watershed over the last fifteen years, making millions and millions of dollars in this process. PL invested little to no money in collecting sufficient monitoring data while making this fortune, and only produced the little information that is available after being absolutely forced to do so, and only after significant degradation had occurred. Given that PL has spent only a very minute percentage of the profits they have gained from the Elk River to monitor their operations, and given the great expense that our beneficial uses have paid as a result, it is disingenuous for them to claim that this monitoring program is too much of a cost for them to bear. This cost pales in comparison to the money that PL plans to make from the forests in the South Fork in the next two years, not to mention the water quality costs that THP 520 would have absent the monitoring provisions of the Order. The costs associated with executing a logging plan, including the potential costs associated with monitoring, are simply a part of doing business in the industry in which PL has chosen to participate.

PL also claims there is no legitimate need for the monitoring provisions described in the Order; to the contrary, however, there is a tremendous emergency for such a program. Without meaningful sediment discharge data, risk assessment becomes impossible. There is currently a great dearth of information available on turbidity levels and other conditions within the South Fork and North Fork as well as most all other North Coast streams. Although there are some sediment sources from past logging operations in the area, the South Fork has not been logged as extensively as either the past rate of logging in the North Fork or the rate that PL has planned for the South Fork. Given the level of logging that PL has planned in the South Fork, the current degraded conditions in the Elk River, and the critical importance of these waters to the coho salmon and other imperiled aquatic species, the dire need for a sufficient monitoring program cannot be overstated.

It has long been noted that monitoring provisions are deficient with respect to logging operations but this problem has yet to be rectified by the California Forest Practice Rules ("FPRs"). This was one of the primary reasons that the EPA refused to certify the FPRs as Best Management Practices pursuant to Section 208. NMFS has also recognized this problem many times, including in their final rule to list the coho salmon as a threatened species, which states:"[t]he current process for approving Timber Harvest Plans (THPs) under the CFPRs does not include monitoring of timber harvest operations to determine whether a particular operation damaged habitat and, if so, how it might be mitigated in future THPs." 62 FR 24596. Professor Tom Dunne, chair of the "University of California Committee on the Scientific Basis for the Prediction of Cumulative Watershed Effects," recently stated that there is "[l]ittle or no monitoring before or after harvest projects or harvest cycles, so there is little objective data, and little accumulation of useful information." See undated correspondence from Professor Tomas Dunne to California Board of Forestry (Exhibit ‘V’ to EPIC's supporting documentation). The Order gets to the heart of this problem in one of the most pressing and crucial situations facing native aquatic species.

In California, all species of anadromous salmon are in serious decline and many local stocks have been completely extirpated. Coho have experienced some of the most precipitous declines of all West Coast salmon and are at critically low levels today. Native coho have been extirpated from numerous streams in central and northern California, and remain at extremely low levels in most others. NMFS estimated that, while historically from 150,000 to 400,000 mature coho returned to streams in southern Oregon and Northern California annually, there are probably less than 6,000 naturally-reproducing coho salmon in this ESU today. It was estimated that only 1,500 coho salmon returned this season in all of California. These numbers are alarming and mean that this fish is literally hanging on the verge of extinction in this state. It is imperative that each small population, including that within the South Fork Elk River, must be protected and restored if we are to prevent its very imminent demise.

The South Fork is exceedingly important to the survival of the coho salmon. Department of Fish and Game's ("DFG's") surveys of the South Fork have found relatively high numbers of coho salmon as compared to most California streams. For instance, in 1994 found 135 live coho salmon and 56 spawned-out carcasses within 1.5 miles surveyed in the South Fork. DFG's Stream Inventory for the South Fork shows that they observed 484 coho salmon from 1993 to 1994. As low as this number is compared to historical accounts, this represents a very significant portion of the coho salmon population remaining in California. We must not follow on the same road in the South Fork as we have in most other California streams--one that leads to the watershed becoming uninhabitable for the species native to its waters. Without vigilant and meaningful monitoring efforts, however, there is no alternate path to take.

In addition to the escalated concerns surrounding the coho salmon, many other circumstances have changed since the original review of THP 520. The South Fork is at a much greater risk because PL submitted 5 additional logging plans in the last year, and this could put more than half of the watershed under the footprint of a logging plan within a ten year time period. Elk River Timber Company did not log at the same breakneck speed as PL, and so this rate of logging was not anticipated in the original review of THP 520. PL refused to update the cumulative impact analysis to incorporate these known future projects in the plan's major amendment, so the sum total of potential impacts facing the South Fork has not been analyzed or considered with respect to THP 520.

PL contends that (1) the monitoring program set forth by the Order is deficient and (2) said program is not needed because they have proposed to conduct a monitoring program of their own design. It is odd that PL finds fault with the monitoring plan set forth by the Order, as the one they have proposed is much more limited. The Regional Board is the expert agency on water resources, and their opinions and recommendations should not be disregarded or second-guessed by PL or CDF. It is unreasonable to believe that either PL, who has a demonstrated desire to conceal information on turbidity and suspended sediment levels, or CDF, whose agency is not well versed in water quality laws or monitoring techniques, could devise a monitoring program that would be superior to one prepared by the Regional Board.

PL's proposed monitoring plan would not produce information that could be used to draw conclusions as to the sediment impacts caused by logging THP 520. It would only include one monitoring station, and this station would be located downstream of domestic water users. The plan would be wholly incapable of detecting or quantifying sediment discharges from THP 520, distinguishing sediment discharge sources or developing meaningful data for adaptive management purposes.

 

B. The Order Is Not Precluded By Any Laws Or Regulations And Was Properly Issued By The Executive Officer

1. The Executive Officer Is Specifically Authorized To Issue The Order And The MAA Does Not Preclude Nor Supersede This Authority

PL presents several bizarre assertions regarding the compatibility between the Order and various laws and regulations, none of which hold true. First, PL claims that the Order is precluded by a 1988 Management Agency Agreement ("MAA") signed by the State Board, CDF and the Board of Forestry. PL offers no explanation or supporting facts for arriving at such a conclusion, but merely contends that by signing the MAA, the State Board in some way bound the Regional Board from taking action pursuant to Section 13267(b) in relation to logging operations. However, the MAA was not meant to, nor could it, replace or restrict the Federal Water Pollution Control Act ("CWA" or "the Act"), the Porter-Cologne Act or the requirements set forth by the Regional Water Quality Control Plan for the North Coast ("Basin Plan"). These laws and regulations expressly grant the Executive Officer the authority to issue monitoring and reporting requirements under section 13267(b)(1) for logging operations when warranted, and, indeed, make it his mandate to do so.

The Water Quality Act of 1965 (Publ. L. 89-234) stated in its declaration of policy that "[t]he purpose of this Act is to enhance the quality and value of our water resources and to establish national policy for the prevention, control, and abatement of water pollution." To enable this policy, each state was required to include a statement in its water quality standards that, at a minimum, established the following:

"Waters whose existing quality is better than the established standards as of the date on which such standards become effective will be maintained at their existing high quality.

These and other waters of a State will not be lowered in water quality unless and until it has been affirmatively demonstrated to the State water pollution agency and the Department of the Interior that such change is justifiable as a result of necessary economic or social development and will not interfere with or become injurious to any assigned uses made of, or presently possible in, such waters. This will require that any industrial, public or private project or development which would constitute a new source of pollution or an increased source of pollution to high quality waters will be required, as part of the initial project design, to provide the highest and best degree of waste treatment available under existing technology, and, since these are also Federal standards, these waste treatment requirements will be developed cooperatively." [Secretary of Interior, 1968].

This policy evolved into the "antidegradation policy" of today, and formed the basis from which the goals and intent of the CWA were born. In enacting this law, Congress established as an objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C.A § 1251(a). Congress also established a "national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met." Id.

This intent is largely carried out through water quality standards that are developed by individual States and Tribes under section 303 of the CWA under the oversight of the EPA. 33 U.S.C.A. 1251(c)(2)(A). These water quality standards must include the designation of the existing and potential beneficial uses of each watershed, a policy to protect and restore these "beneficial uses" and specific water quality criteria and implementation methods that will ensure this "antidegradation" policy is carried out. 40 C.F.R. § 131.6. These standards are reviewed every three years, and the State Board and EPA are required to oversee this process and ensure that the water quality standards are consistent with state and federal laws. 33 U.S.C.A. § 1313(c)(2)(A); 40 C.F.R. 131.20(c); Water Code § 13245. Water quality standards and their federal antidegradation policy serve as the primary means to protect the beneficial uses of our nation's waters.

The Water Code states that:

"in conducting an investigation [for purposes of establishing or reviewing any water quality control plan or waste discharge requirements, or in connection with any action relating to any plan or requirement or authorized by Division 7], the regional board may require that any person who has discharged, discharges, or is suspected of discharging…shall furnish, under penalty of perjury, technical or monitoring program reports which the regional board requires…" § 13267(b)(1).

This statute grants very broad authority to the Regional Board for prescribing monitoring requirements and obtaining information necessary to investigate discharges and threatened discharges of pollution. Specifically relating to logging operations, the Regional Board and State Board have directed the "Executive Officer of the Regional Water Board…to investigate and report to the Regional Water Board evidence of violations of the water quality objectives contained in the Basin Plan which result or threaten to result in unreasonable effects on the beneficial uses of the waters of the Region…The [Regional Board] staff may request additional information from any individual or firm engaged in timber operations, road building, or related construction activity in accordance with Water Code Section 13267(b) as may be necessary to implement their investigations and carry out the policy of this Regional Water Board. Basin Plan at ." Basin Plan at 4-28.01 and 4-31.00 (emphasis added).

PL provides no basis for their assertion that the MAA somehow limits the Regional Board's authority to take action under Section 13267(b). Even if the MAA had led the U.S. Environmental Protection Agency ("EPA") to certify the Forest Practice Rules as Best Management Practices ("BMPs") under Section 208 of the CWA, which it did not, neither BMPs nor MAAs supersede the regulatory authority granted to the State and Regional Boards by the state and federal legislatures. 33 U.S.C.A CITE. This is for good reason; as Dr. Dunne notes, "[m]ost [cumulative watershed effects] are transmitted through the channel network of a watershed, and they persist despite BMPs because BMPs are simply Best Management Practices. BMPs do not fully mitigate the effects of land use." See undated correspondence from Professor Tomas Dunne to California Board of Forestry (Exhibit ‘V’ to EPIC's supporting documentation).

PL certainly would like to maintain the status quo and produce no worthwhile monitoring data, but this does not mean that the Order "rejects the established process for review and approval of THPs…" as they contend. The established procedure in state law, which was developed by the Regional Board and approved by the State Board, is that the Regional Board staff may request any monitoring information they deem necessary for any reason related to logging operations. CITE. PL is correct in stating that the Order would represent an "unprecedented change" in that they have never been required to undertake such a monitoring program pursuant to Section 13267(b) in the past. However, this only shows that the Regional Board is not excessive in enacting this provision, and supports a fair argument that the Regional Board has instead been remiss in failing to wait so long to do so. The question is not whether the decision for requiring such monitoring provisions should be made "with policy input at the State Board level…" as PL asserts, but why this policy, which was made at the Regional and State level, has never been invoked before now. The water quality standards adopted by the State Board specifically authorize the Executive Officer to use Section 13267 without their input, and his decision to finally do so is certainly not something that is precluded by the MAA.

 

(2) The Order Is Not A Waste Discharge Requirement And Is Not Precluded By Any Relevant Laws

PL contends that the Order was improperly issued because waste discharge requirements cannot be ordered by the Executive Officer, then reaches to assert that, in any event, logging operations are immune from such requirements. These assertions fall on their face for many reasons.

To begin, orders issued under Section 13267 do not constitute waste discharge requirements. Although included in the same article of the Water Code, investigative actions pursuant to Section 13267 are specifically set apart and distinguished from waste discharge requirements in the relevant statutory language:

A regional board, in establishing or reviewing any water quality control plan or waste discharge requirements, or in connection with any action relating to any plan or requirement or authorized by this division, may investigate the quality of any waters of the state within its region. § 13267(a) (emphasis added).

This section makes it clear that the legislature intended this section to have very broad applicability and to grant the Regional Board broad authority to investigate violations and potential violations of the Basin Plan. This section also makes it certain that requiring technical and monitoring information is not linked to waste discharge requirements. Indeed, Regional Boards have issued hundreds of orders pursuant to Section 13267 that are unrelated to waste discharge requirements in any way. Waste discharge requirements include additional measures that go above and beyond that called for in Section 13267 or the Order, and both of these stand distinct and independent from waste discharge requirements. The State and Regional Boards have codified this distinction specifically in relation to logging operations, and have granted the staff and the Executive Officer the power to issue orders exactly like the one at hand. As such, many of PL's arguments are without merit and can be dismissed as irrelevant.

The level of absurdity in PL's contentions does warrant discussion, however, even if only to highlight the extent to which they are willing to go in distorting the issues. PL stretches their argument to claim that the Forest Practice Act makes any logging operation immune from waste discharge requirements unless the Board of Forestry requests said requirements. This notion is false and unsubstantiated, as the waiver for waste discharge requirements is "conditioned and may be terminated at any time by the [regional] board." Water Code § 13269; 23 CCR § 2205 (emphasis added). The Forest Practice Act does not eliminate or distort the Regional Board's ability to exercise this authority, and does not make it so that the termination of the waiver for waste discharge requirements is contingent or reliant upon the Board of Forestry's consent. This view is echoed in the Basin Plan:

The Regional Water Board considers that implementation of the discharge prohibitions relating to logging, construction, or associated activities can provide appropriate protection to waters of the region from these sources of waste and, in the great majority of their activities, will waive the need for reports of waste discharge and waste discharge requirements. However, where investigations indicate that the beneficial uses of water may be adversely affected by waste discharges, the staff shall require the submission of Reports of Waste Discharge. At 4-31.00 (emphasis added).

The relevant laws and regulations make it clear that the Regional Boards have the authority to terminate the waiver of waste discharge requirements in relation to logging operations with or without the Board of Forestry or CDF's concurrence. For it to be otherwise would be entirely inappropriate, as neither the Board of Forestry nor CDF is the expert agency for water quality concerns or the trustee for water resources.

 

C. The Forest Practice Act Does Not Shield PL From Their Responsibility Under Public Nuisance Laws

PL seeks also to shield itself from nuisance laws through this appeal, claiming the Forest Practice Rules the Timberland Productivity Act bestow upon them the right to ignore and evade one of the most fundamental principles of our country. Founded in common law, nuisance laws protects the most basic rights of all people--the rights to clean air, clean water, and a life that is not unreasonably altered by the acts of others. No law supplants the central laws of this state and nation, and any assertion to the contrary is absurd and groundless.

The waters of the nation and the benefits they provide are held in the public trust for the common good of all people. The right to drink, fish, recreate, or otherwise benefit from our watersheds is one that is fundamental and is a principal upon which this country was founded, whereas the right to degrade or otherwise harm these benefits can be held by no individual or corporation. It was in response to the widespread degradation of this right by chemicals, erosion and other forms of pollution that Congress enacted legislation in the 1960's that was aimed at preventing ongoing degradation of our nation's watersheds. These water laws have their roots in common law, and from them the antidegradation policy of today was formed.

PL's argument regarding immunity from nuisance fails, first because §51115.5 (b) exempts the limited liability extended by the legislature for any operation which endangers public health and safety, or prohibits the free passage or use of a navigable river, street or highway. The increased sedimentation and runoff caused by PL's recent and proposed logging does both. Absolute abrogation of civil liability arising from nuisance caused by logging operations, or any conduct for that matter, is beyond legislative or administrative authority.

PL would like us to believe that just because they holds title to property, they can do as they please on the landscape without any regard for our public trust resources. This varies greatly from the very seeds from which our nation and state grew, and it is deep-rooted within our history that waters and all uses they support belong to the state for the people and by the people. Perhaps this is best told by the following, which was written by the California Supreme Court in 1884:

"As we have already said, the rights of the people in the navigable rivers of the State are paramount and controlling. The State holds the absolute right to all navigable waters and the soils under them, subject, of course, to any rights in them which may have been surrendered to the general Government. (Martin v. Wade, 13 Pet. 410.) The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it; these are inalienable. Any grant of the soil, therefore, would be subject to the paramount rights of the people to the use of the highway. And such was the doctrine of the common law. "The jus privatum," says Lord Hale, in De Jure Maris, p. 22, "must not prejudice the jus publicum, wherewith public rivers and arms of the sea are affected to public use." It is, therefore, beyond the power of legislatures to destroy or abridge such rights, or to authorize their impairment.

As to the claim of right derived from prescription and the statute of limitations, it is sufficient to say that a right to continue a public nuisance cannot be acquired by prescription. (Pettis v. Johnson, 56 Ind. 139; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Wright & Rice v. Moore, 38 Ala. 593; People v. Cunningham & Harris, 1 Denio, 524; Mills v. Hall & Richards, 9 Wend. 315.) Nor can it be legalized by lapse of time. (§ 3490, C. C.) Against it, however long continued, the State is bound to protect the people; and for that purpose the attorney general, as the law officer of the State, has the power to institute a proceeding in equity in the name of the people, to compel the discontinuance of the acts which constitute the nuisance. (County of Sacramento v. The Central P. R. R. Co., X. Pac. C. L. J. 27; 61 Cal. 250; People v. Stratton, 25 Cal. 242; Yolo County v. Sacramento, 36 Cal. 193"

The People of the State of California v. Gold Run Ditch and Mining Company, 66 Cal. 138 No. 8,996 (1884).

The issues at hand in this case involved hydraulic mining and were actually quite analogous to those with PL's logging operations in the Elk River today. Proceeding the statement above, the Supreme Court that:

"...Undoubtedly, the fact must be recognized, that in the mining regions of the State, the custom of making use of the waters of streams as outlets for mining debris has prevailed for many years; and as a custom it may be conceded to have been founded in necessity; for without it, hydraulic mining could not have been economically operated. In that custom the people of the State have silently acquiesced, and upon the strength of it mining operations, involving the investment and expenditure of large capital, have grown into a legitimate business, entitled equally with all other business pursuits in the State to the protection of the law. But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners. (§§ 3479, 3514, C. C.; 731, C. C. P.)." Id. [emphasis added]

 

D. The Requirements Of The Basin Plan Are Sufficiently Detailed To Provide Fair Warning And Do Not Obstruct PL's Right To Due Process

PL does not stop in its pursuit to strip the State Board and Regional Board from their vested authority to enact Sections 13260 and 13267 in relation to logging operations through this appeal, but takes it a leap further and attempts to invalidate entire portions of the State's water quality standards program. PL claims the Order denies their right to due process because the water quality standards upon which it is based lack enough specificity to describe acts that are prohibited and provide "fair warning" of such violations. To arrive at such a conclusion, one would have to be of the opinion that the State Board, Regional Board and the EPA have skewed due process laws in enacting and enforcing the Basin Plan and carrying out their duties related to the CWA and Water Code. Such an argument does not have merit, as the Basin Plan standards certainly contain sufficient detail when held up to the vagueness standard.

PL's main objection to the water quality standards is that they do not "enforce specific numeric limits" (sic). PL at 22. Even if this were true, PL concedes it would "not render those water quality objectives too vague and uncertain to be lawfully enforced, but they complain the turbidity standard is so "replete with vague, ambiguous, and undefined terms…" that it provides no standard at all. Id. at 23 and 24.

In looking at the water quality standards at issue and the cases to which PL cites, there is no support for this contention. In fact, cases to which PL refers involved standards that were much more vague than the turbidity standard or other water quality standards relevant to this Order, and were still upheld by a court of law.

PL first points to Cranston v. City of Richmond, a case that involved a former police officer who was discharged from his job for "conduct unbecoming an employee of the City Service." The Plaintiff charged that this description was unconstitutionally vague and did not provide "fair warning" of the proscribed acts. The California Supreme Court firmly rejected this argument, stating:

We disagree with appellant that [the standard at issue] provides no standard at all. It is true that, considered in isolation, the term 'unbecoming' has no inherent, objective content from which ascertainable standards defining the proscribed conduct can be fashioned. However, [the standard] does not exist, and we do not apply it, in isolation. A number of California cases have held that where the language of a statute fails to provide an objective standard by which conduct can be judged, the required specificity may nonetheless be provided by the common knowledge and understanding of members of the particular vocation or profession to which the statute applies.

Cranston v. City of Richmond, 40 Cal. 3d 755 (1985) (citations and internal quotations ommitted). The Court concluded that "the expression 'conduct unbecoming an officer' fails, on its face to provide a standard," but nevertheless found the standard was constitutionally valid and could be upheld under the vagueness standard. Id.

Unlike with Cranston, it cannot be said that the regulations at issue here facially fail to provide a standard. The turbidity standard contains a "numeric standard" that is specific: One must not cause a turbidity increase of more than 20% over background levels. This standard puts a person with common intelligence on notice of the acts they are prohibited to perform. The term "background levels" is the true problem that PL has with the standard, resembling the situation in another case to which PL cites in which the Court rejected the vagueness argument.

Plaintiffs argue that it is a denial of due process to fail to specify discharge in terms of quantities of materials…Plaintiffs argue that they cannot show that a development exceeding the coverage restriction will not cause a prohibited discharge because the Plan does not tell them what a prohibited discharge is in terms of amounts of materials attributable to incremental runoff. Plaintiffs assert that they cannot compare the discharge attributable to a development with excess coverage with a permissible coverage development without a qualitative and quantitative analysis of a permissible discharge. They suggest that it is incumbent upon the Water Board to assert the quantities of materials that are permitted so that the landowner can prove that a proposed development exceeding the coverage restrictions would not generate an impermissible discharge. The argument is faintly reminiscent of the disingenuous request in Hansel and Gretel that Gretel be shown how to enter the oven.

Tahoe-Sierra Preservation Council et. al., v. State Water Resources Control Board et. al. 210 Cal. App. 3d 1421, 1439 (1989).

 

E. The Regional Board Order Is Not "Unprecedented" And Is Well Within Its Statutory Authority

PL's view on cumulative impacts is well reflected in their request for a stay, claiming that they have no responsibility to understand or evaluate existing pollution problems within the "Hole in Headwaters" and how they may interplay with the impacts from THP 520. PL claims "there is no basis for characterizing sediment runoff from existing conditions as a 'discharge' subject to regulation under the Water Code," using this as a basis for declaring that the Order was not properly issued under Section 13267(b). While there are certainly continuing problems from past projects within the South Fork, the discharges of pollution at issue in the Order relate to "proposed discharges" by PL, and thus are "a proper basis for issuance of a section 13267 order." PL at 27. Furthermore, as PL points out, Water Code Section 13267(b) authorizes issuance of monitoring orders to "any person who has discharged, discharges or is suspected of discharging, or who proposes to discharge waste." There is little doubt that PL falls under all of these descriptions, having discharged thousands of cubic yards of sediment pollution into the Elk River watershed in its North Fork and now threatening to dump unknown quantities in the future in its South Fork.

Moreover, sediment sources from past logging operations certainly qualify as 'discharges' that are "subject to regulation under the Water Code." The Basin Plan states:

Controllable water quality factors shall conform to the water quality objectives contained herein. When other factors result in the degradation of water quality beyond the levels or limits established herein as water quality objectives, then controllable factors shall not cause further degradation of water quality. Controllable water quality factors are those actions, conditions, or circumstances resulting from man's activities that may influence the quality of the waters of the State and that may be reasonably controlled. Basin Plan at 3-1.00 (emphasis added).

Many of the sediment sources in the South Fork are "controllable," and all of them became the responsibility of PL's when they acquired the land. Even if one could accept PL's argument and believe that the Order extends to "passive" activities for which they are not responsible, it would still be entirely reasonable and appropriate for the Regional Board to request information on existing conditions and levels of pollution. The Order relates to monitoring of planned logging operations. Regardless, the Regional Board would be well within its realm of authority if they demanded a monitoring plan for a potential problem that had been caused in the past, even if this problem was caused by a previous landowner. The Regional Board has required monitoring plans for such problems in the past, and would not be prevented from investigating existing problems caused by Elk River Timber in the South Fork (See Legarra v. Federated Mutual Insurance 35 Cal. App. 4th 1472; 1995 Cal. App. LEXIS 566).

How PL believes they can adequately analyze and evaluate cumulative impacts without including existing sediment problems in such an assessment is unknown. The California Environmental Quality Act ("CEQA"), to which both the Regional Board and PL must adhere, requires that problems from past projects be considered, and does not limit this liability to problems that were caused by the current landowner.

 

IV. PL Has Not Met Their Burden To Obtain A Stay Of The Order, And Their Petition To Do So Must Be Denied.

To obtain a stay in this matter, PL must prove that (1) PL or the public interest face "substantial" harm if one is not granted, (2) there would not be substantial harm to other interested persons if one is granted, and (3) there are substantial questions of fact or law regarding the disputed action. 23 CCR 2053. PL has met none of these requirements.

First, PL would not face substantial harm if a stay were not granted. PL argues that the Order would be too costly for them to implement and that it would violate their Constitutional rights for the Board to require them to begin monitoring. These arguments are unconvincing.

Conversely, an enormous amount of harm would be presented to downstream landowners and to the public interest at large if the State Board granted this stay. THP 520 has great potential to create problems related to sediment pollution, and these concerns were not alleviated by the major amendment. Right now, there is a window of opportunity to collect monitoring data that can be used for assessing and mitigating impacts from THP 520. This window will close forever and this opportunity will become irretrievable once logging has commenced. If the State Board elects to grant a stay, PL must stipulate to postpone logging of THP 520 until after a ruling on the merits of the order is issued.

Finally, PL's legal arguments in this appeal amount to little more than wishful thinking. Once the irrelevant claims are eliminated, little to no substance remains. PL seeks to not only avoid gathering meaningful data as they have succeeding in doing thus far, but to nullify the State's water quality standards program and to elude the laws that are at the very basis of our legal system. These arguments do not hold true, and this petition and request for a stay should be denied.

Respectfully submitted,

 

Cynthia Elkins

Advocacy and Legal Director

Cc: Edgar Washburn, Esq.

North Coast Regional Water Quality Control Board