Public Interest Groups Petition State Water Board for Stay

A coalition of public interest groups announced today that they have filed a petition with the State Water Resources Control Board for an immediate emergency stay of the North Coast Regional Water Quality Control Board’s (RWB’s) action of March 16, 2005 to provide permit coverage for 74% of the Pacific Lumber Company’s timber harvest plans in the Elk River and Freshwater watersheds.

The petition was filed by the Humboldt Watershed Council, the Environmental Protection Information Center, and the Sierra Club, who believe that the RWB’s action is a violation of the public trust. The petition states that the Regional Board’s permitting of these plans was arbitrary and capricious, was made without any basis, is contrary to the administrative record for these watersheds, is unenforceable, violates the CEQA mandated process for public review, and is in direct conflict with the terms of the RWB’s General Waste Discharge Requirements (the permit used by the Board).

For a stay to be granted, the petitioners must show three things:

· substantial harm to petitioner or to the public interest if a stay is not granted,

· a lack of substantial harm to other interested persons and to the public interest if a stay is granted and

· substantial questions of fact or law regarding the disputed action.

It has been well established and accepted as fact by both PL and the Regional Board that PL’s practices have harmed the residents of these watersheds. At the RWB hearing on March 16, 2005, the members and staff of the Regional Water Board, as well as representatives of the Pacific Lumber Company, all acknowledged the impaired condition of the watersheds and its impact upon the residents who live there.

Prior to the Board’s action, RWB staff had imposed limits on PL’s logging activity in these watersheds which were based upon well-established science and were designed to give Pacific Lumber the maximum possible timber harvest in these watersheds which would still allow meaningful recovery and, thus, relief for the residents. The Board’s action amounts to an increase of 50% above the rate which will allow for recovery. By arbitrarily and capriciously over-ruling their staff, the Board’s action not only fails to relieve existing and ongoing harm, but rather forces the residents of these watersheds to suffer new harm which would not otherwise exist.

In Freshwater and Elk River there are an estimated 250 properties and 592 residents who are either impacted or trapped by flooding numerous times each year. Over a 20 year recovery timeframe, the Board’s decision could cause these residents to suffer $576,000 in lost work alone. Future property damage to homes, foundations, driveways, fences, septic systems, wells, furniture, vehicles, and livestock could easily exceed $2,000,000. All together, the future damages to residents from the Board’s action could add up to over $3,000,000 before recovery is attained.

The granting of a stay would not cause any harm to Pacific Lumber. The company’s own documents show that they are logging at exactly their planned rate for this decade (162million board feet per year), and that their current financial mess predates any reduction in their harvest by the Regional Water Board. Clearly PL’s problems were not caused by the RWB, and the Board has neither the ability nor the responsibility to fix them.

At the March 16, 2005 hearing PL representative Jared Carter testified under oath that the 75% enrollment would make no difference in the company’s ability to stay in business “more than a matter of weeks”. PL’s threat of looming bankruptcy greatly increases the likely harm to residents, as there is no way to ensure that any of the mitigations on these THPs will ever happen. Therefore, it must be assumed that the harm from these THPs will be unmitigated. The harm is real. The mitigations are not.

The Board’s decision was arbitrary by any measure. Board Member John Corbett proposed that the Board direct staff to enroll additional THPs up to 75% of the CDF allowance. At no time was the Board presented with any evidence to support a recovery curve based on this 75% rate, nor was there any discussion among the Board as to the effects of such a rate. In fact, the only basis given by Mr. Corbett for choosing the 75% figure was “…it’s minus 25%.”

After Mr. Corbett presented the 75% figure, Board Member Lyle Marshall cautioned his fellow Board Members that “I can’t vote to pick an arbitrary percentage out of the air”. Marshall voted against the motion, along with Board Members Richard Grundy and Bev Wasson.

The Board’s motion included a number proposed mitigations which had been offered by PL, but these proposals were not made available to the public in advance of the meeting. Most members of the public never saw this list of proposals until after the Board's decision was made.

The Regional Board’s use of the GWDR (order R1-2004-0030) in watersheds where cumulative effects are present is prohibited under sections III.C.1, V.A.4 and V.A.5, yet it is being justified by adding these additional mitigations which miraculously make cumulative impacts go away. Given this near-magical significance, their addition into the GWDR would require public notice, circulation, and review before adoption. This has not happened and, therefore, the CEQA process has been improperly circumvented.

The granting of this stay would protect the residents of the watersheds, and would be in the public interest, while not harming PL in any otherwise preventable way. Failure to grant the stay, on the other hand, will cause new harm to the health, safety, property, and liberty of the residents of the watersheds. The granting of this stay is supported by ample evidence in the administrative record, and by substantial questions of law. The balance of harm in this case thus overwhelmingly compels the granting an immediate emergency stay.