On November 2, 2004, EPIC filed suit against the. U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric. Administration (NOAA Fisheries) for their ongoing failure to comply with federal laws, in the approval and oversight, of the Pacific Lumber Company's Habitat Conservation' Plan and Incidental Take Permits (HCP). issued in. 1999 as part of the Headwaters Deal. The suit alleges that these agencies have violated the Endangered Species Act, National Environmental Policy-Act and the Clean Water Act in numerous ways resulting in impacts to listed species including the marbled murrelet, coho and. Chinook salmon, and coastal cutthroat and steelhead trout. The suit also names Pacific Lumber and its related companies for their documented violations of law since the HCP was unveiled in 1999. Friends of the Van Duzen joined with EPIC in the suit in late December.
Since the approval of the Habitat Conservation Plan in 1999, the public has observed the continuing negative effects of PL's logging. Last year a state court, in an action brought by EPIC and the Sierra Club, rejected all of the state approvals issued in conjunction with the Headwaters Agreement and PL's HCP. The court found that those approvals had been issued in violation of state law, and that PL's past and current timber operations cause environmental harm. Due to the. federal agencies' ongoing involvement with and supervision of PL's logging pursuant to the HCP, EPIC sued to hold these agencies accountable for the consequences of PL's logging.
The Endangered Species Act (ESA) imposes strict requirements for consultation with FWS and NOAA Fisheries, with the aim of insuring that any action taken or authorized by federal agencies does not threaten the survival of listed species or result in significant loss of habitat for those species. This consultation is necessary in order to determine if a listed species will be jeopardized by an action, and whether (and under what circumŽstances) the "take," or incidental killing, of a species rnay be allowed. In authorizing a take of listed species, FWS and NOAA Fisheries must use the best scientific and commercial data available, and must ensure that the applicant minimizes and mitigates the impacts of the taking to the greatest extent practicable. Because the survival or extinction of listed species may depend upon such decisions, consultation should reoccur after a decision is made if new information arises which reveals that the impacts to that species may exceed what was originally intended or known. In such circumstances, FWS and NOAA Fisheries must prepare supplemental environmental review pursuant to the National Environmental Policy Act (NEPA). Additionally, the Clean Water Act (CWA) imposes a duty upon federal agencies to comply with water quality standards and the antidegradation policy intended to prevent the lowering of water quality.
Permits to Kill
In 1999, FWS and NOAA Fisheries gave permission to Pacific Lumber to take several listed species in the course of logging its 211,000 acres, including an unspecified number of marbled murrelet, coho and Chinook salmon, steelhead trout and coastal cutthroat trout. At the time, PL's old-growth redwood and Douglas-fir forests provided a home to these and other listed species. EPIC contends in its suit that each of these species is now at greater risk than at the time of the HCP approval, due to impacts that were not adequately considered at that time and ongoing activities that are exacerbating those impacts.
Murrelet on the Edge
The marbled murrelet serves as a troubling case in point. The murrelet faces serious threat of extinction because it relies upon the shrinking old-growth redwood and Douglas-fir forests of northern California for nesting and foraging. The FWS's Recovery Plan for the species stresses that its survival depends on protecting the entire nesting habitat that currently remains. Its designated "critical habitat" includes approximately 40,000 acres owned by PL; these old-growth and residual old-growth stands not only provide critical nesting areas but also form a crucial biological link between other murrelet habitat areas in public ownership. The link is so crucial, and the species as a whole so imperiled, that some experts believe the loss of remaining PL groves could trigger a collapse of the murrelet population throughout California and beyond.
Since the 1999 HCP approvals, new information has revealed that the impacts to the murrelets from PL's logging are more severe than expected, due to several factors. For one, research shows that oil spills in the region killed far greater numbers of murrelets than the HCP contemplated. These spills killed birds that would otherwise have occupied and bred in habitat that the HCP conserved as mitigation for other murrelet habitat currently being logged by PL. However, because that conserved habitat is not permanently protected, and a significant period of time will elapse before this depopulated habitat becomes colonized by murrelets, that habitat may be lost. Additionally, surveys conducted for the 1999. approval underestimated the value of habitat designated for logging, wrongly concluding that habitat found unoccupied was normally unoccupied, when in fact it was only temporarily unoccupied as a consequence of oil spills. Furthermore, newer population studies show fewer murrelets remaining across its entire range than previously believed. Perhaps most alarmingly, a May 2004 report commissioned by FWS concluded that under current management schemes, the marbled murrelet faces a 100% probability of extinction in California in the next 40 years. For all of these reasons, EPIC contends that the impact on the species from PL's logging is much greater than the HCP stated.
Salmonids Also Struggling
Salmonids provide another chilling example of the damage being done under the HCP. PL's old-growth and residual forests also provide spawning and rearing habitat for native coho and Chinook salmon, steelhead trout, and coastal cutthroat trout. Critical coho habitat designated by NOAA Fisheries exists in all watersheds affected by PL's logging operations, including Freshwater Creek and the Elk, Van Duzen, Eel, Bear and Mattole Rivers. As andromous fish, salmonids spend the early part of their lives in freshwater streams and rivers, and then migrate out to sea for several years until they return to the streams of their birth, where they spawn and then die. These species require clean, cold freshwater habitat for both the juvenile rearing and spawning stages of their life cycles. Salmonids are extremely sensitive to high water temperatures and high concentrations of fine sediment; sustained temperŽatures much over 70 degrees Fahrenheit can kill them. Dense, shady forest along stream banks, deep sheltering pools, and in-stream woody debris are all essential for their survival. Yet ongoing loss of riparian canopy, combined with sedimentation from logging and road. building, have put these species in great jeopardy.
As with the marbled murrelet, new information now shows that the effects of PLs logging may have a greater effect on listed salmonids than previously considered. Many of the rivers and streams affected by PL's logging are listed under the CWA as water-quality-impaired due to elevated temperature and/or excessive sedimentation or turbidity. These watercourses are therefore particularly susceptible to degradation caused by activities approved in the HCP, and are entitled to even greater protection under the water quality antidegradation policy.
WATER QUALITY
Recent scientific studies comissioned by California's North Coast Regional Water Quality Control Board concluded that the HCP and its existing provisions fail to protect beneficial water uses and lack key elements needed to assure water quality standards. These studies have found numerous shortcomings under the HCP, including a failure to adequately protect landslide-prone slopes, streamside buffers that are inadequate to mitigate discharges of fine sediment, and an overall failure to sufficiently limit sediment production from the rate of PL's logging since 1999. Overall, these studies indicate that the HCP's aquatic conservation strategy underestimated the amount of sediment that would be introduced into salmonŽbearing streams by PL's logging since the 1999 approval; these higher sediment levels and resulting water turbidity have severe adverse effects on threatened salmonid species.
An independent science panel concluded in 2003 that even if PL's Habitat Conservation Plan were fully implemented as intended, it cannot be relied upon to meet water quality objectives. Thus, EPIC's suit contends that the federal agencies violated the CWA by approving a plan that fails to adequately protect water quality, and fails to comply with California's water quality and antidegradation standards. The antidegradation policy continues to be violated by impacts from PL's accelerated harvesting of its remaining old-growth and residual stands. In short, by approving a 50-year HCP, the federal agencies authorized logging which has undermined and will. continue to undermine both federal and state water quality requirements.
