April 28, 2000
In the last ?Diggin? In? column for ?Branching Out? I went over various moves in legislation and in administrative rules changes relating to forest practices, including adequate enforcement of existing laws and correction of obvious problems. Some of these obvious problems included failure to protect and recover watersheds and fisheries and failure to protect old-growth trees. These problems were prominent in the inadequate cumulative impact evaluation and response process and the ?Exemption? process of CDF (California Department of Forestry and Fire Protection).
The column went into the Emergency Petition heard before the Board of Forestry on January 12, 2000. The major high-profile focus of that Petition was the banning of the cutting of old-growth, backed by the fresh example of old-growth illegally cut under an ?Exemption? along the sediment-and temperature-impaired South Fork Eel River at Kimtu near Garberville in December 1999. As reported, the Board found no emergency, but sought to address the problem through a special old-growth committee and to specifically address the exemption problem through its Interim Committee. Not surprisingly, the special old-growth committee has gotten nowhere, and the Interim Committee has not acted to correct exemption problems either.
The Board has had the excuse that they must first act to pass some form of the agency rules package to respond to at least some of the shortcomings in the Forest Practice Rules, pointed out most recently by the Science Review Panel ? and emphasized by the EPIC and Sierra Club lawsuit against CDF, the Board, and The Resources Agency for allowing ?take? of the listed Coho salmon. A summary written about the March Board of Forestry meeting follows:
?It was a ?hella? week last week with many ?hella? weeks ahead. Last week featured the hullabaloo over potential passage of a watered-down rules package at the Board of Forestry meeting in Sacramento. This ?agency? package was touted last July as the first ?brick? of several brick? to enable the Forest Practice Rules to actually protect and recover listed salmon and steelhead as well as water bodies impaired by excess sediment and high water temperature. By the start of the hearing on Tuesday, March 14th, the rule ?brick? was mostly applicable only to watersheds with listed anadromous salmonids present or capable of being restored. The package fell far, far short of the standards for ?no-take? in the Sierra Club alternative, or the standards for ?incidental take? in the Pacific Lumber Company Habitat Conservation Plan (PALCO HCP) or the Short-Term HCP Standards officially presented to the Board by the National Marine Fisheries Service (NMFS) in December 1999.
?The high-profile excitement Tuesday was provided by several hundred timber industry employees, with numerous 18-wheelers loaded with lumber and logs, vehemently arguing once again that any increased regulation would mean the end of, or unbearable hardship to, the logging industry. The last REALLY big demonstration of this type was around 1975 in protest of possible regulations in the wake of a court decision requiring that the Forest Practice Act and Rules be brought into compliance with the California Environmental Quality Act (CEQA). That protest didn?t prevent CEQA from applying to the Forest Protection Act and Rules ? BUT, it did help to back the Jerry Brown Administration into accepting a ?functional equivalent? (of an actual Environmental Impact Report) process which continues to this day to hamper implementation of measures that are necessary to protect, conserve, and restore California forestlands and resources. Several dozen Earth First!ers presented a theater piece outside the hearing (the central set being a money-fringed high-poster bed with Governor Davis in bed with the timber industry) ? and later inside the hearing room ? brought the hearing to a halt for about an hour. Nine Earth First!ers were arrested, ?locked down? together with Chinese finger hand-cuffs, claiming that the Board deliberations were a joke, and singing ?Springtime for Davis and Forestry? (a parody of Mel Brook?s, ?Springtime for Hitler and Germany?). The protesters were held in the Sacramento jail for two days.
?By 6:30 p.m. Tuesday, the public testimony was completed on the Agency package and the Board adjourned, reconvening at 8 a.m. Wednesday morning to take agency testimony and to act on the rules package. The State Water Board, California Department of Fish and Game, and NMFS encouraged passage of the package and for the Board to take the next step on the next ?brick? ASAP. The public hearing was then closed.
Kirk Markwald, a Davis appointee to the Board in 1999 (he has an environmental consulting firm in the Bay Area), came forth as the designated emissary to divide the baby (shape the ?brick?). And so, it came to look about like this (briefly, with many details omitted):
- Sections relating to Class II and III watercourse protections were DELETED
- Class I sections (pertaining to watersheds with, or restorable for, listed anadromous salmonids) were retained (e.g. 150 foot buffer (not a no-cut) on either side of the watercourse ? first 75 feet to have 85% canopy closure, second 75 feet to have 65% canopy closure, and retain ?the ten largest dbh [diameter at breast height] conifers (alive or dead) per 330 feet of stream channel length that are most conducive to recruitment to provide for the beneficial functions of riparian zones.?)
- ?All operations on slopes exceeding 65% within an inner gorge shall be reviewed by a CEG [Certified Engineering Geologist] prior to plan approval.?
- Identification of significant risk erosion sites on a THP and ?ADDRESS in the plan feasible remediation?
- Water drafting restrictions
- GENERALLY no operations near watercourses under emergency or exemption notices
- Effectiveness and implementation monitoring MAY be required for operations within a Watercourse and Lake Protection Zone (WLPZ)
- Various tightening in intent for cumulative impacts and watercourse protection
- Assurance of fish passage ?of all life stages? for watercourse crossings
- GENERALLY a no-cut in a Channel Zone, ?the area between the watercourse transition lines.?
- ?watercourse transition line? definition varies for ?confined? and ?unconfined? channels (approximately the 20 year flood level) [they sure hacked at the definitions]
- ALL PROVISIONS WOULD BE IN EFFECT ONLY BETWEEN JULY 1, 2000 AND JANUARY 1, 2001.
- PROVISIONS WILL NOT APPLY TO HCPs THAT ADDRESS ANADROMOUS SALMONIDS and THAT HAVE AN INCIDENTAL TAKE PERMIT [PALCO?S HCP].
The kicker is that, all of a sudden, the CDF et al. powers that be have decided that the Board will pass a rule package by October 2000 that will deal with cumulative impacts and watershed analysis ? AMAZING. It is like the Board has granted themselves a 6 month extension to all of a sudden deal with something that has been basically ignored or gutted for the last 25 years.
After the Board meeting in April, the government/industry strategy became even more apparent: try and slip by with inadequate ?interim measures? for Coho for the next six months and get an industry-driven and inadequate ?watershed assessment process? in place by 2001. This industry-driven watershed assessment process is being dangled as the way for the industry to determine their own site-specific ?performance standards? and do away with onerous ?prescriptive standards? like no-cut watercourse buffers. On top of this there are efforts being made in the Legislature to give large landowners, the Farm Bureau, county governments, and The Resources Agency the stranglehold on watershed protection and restoration efforts in California.
Maximum effort needs to go into the state administrative and legislative venues in order to save the day and make some positive progress. Massive support is needed for legislation such as President Pro Tem of the Assembly Keeley?s AB 717 ? which would give some equality to Water Quality and Fish and Game in the forestland protection process AND which would require high standards of integrity with scientific and public review of watershed assessments. The recent landmark decision in Prosolino v. Marcus, was heartening, in which the federal judge knocked down the Farm Bureau and timber industry attempt to claim that the Clean Water Act did not require plans and specific measures to stop ?non-point sources? of pollution from commercial farms and forests.
In 1994, the bipartisan Little Hoover Commission Report, ?Timber Harvest Plans: A Flawed Effort to Balance Economic and Environmental Needs?, Recommendation #4 stated: ?The Governor and the Legislature should enact legislation to require the completion of master protection plans for watersheds containing productive forests.? Whether the current efforts turn out to be a sham, or whether we come up with real watershed protection and recovery is up to each of us.
Please contact groups like Trees Foundation and EPIC that can help you make your efforts as effective as possible. Be a part of the missing linkage to actually carry out measures to reduce sedimentation, increase stream shade, recover high quality riparian forest, and restore and improve fisheries habitat. Stop the agency and industry filibuster, and the public/private factionalism, that blocks the real work of recovery.
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TOC for Forest & River News, Spring 2000