WQ & PL UPDATE FEB 2005 The Regional Water Board Executive Officer, Ms. Cat Kuhlman, has called a special meeting for Wednesday, 2/23 at 1PM to publicly air PL's request to approve another 12 THPs in Freshwater and Elk R. under the general Waste Discharge Requirement (G-WDR), 2004-0030. The G-WDR is designed for THPs that are not in impaired watersheds. Freshwater and Elk have been determined to be severely impaired due largely to the cumulative impacts of excessive sediment from PL's logging during the past 15 years, combined with legacy impacts from prior logging. In December of 2003, the NCRWQCB specifically authorized Cat to require watershed-wide WDRs in Freshwater and Elk as of January 1, 2005, giving PL and WQ staff the necessary lead time to develop the permits. During 2004, PL was granted special dispensation to log THPs in Freshwater and Elk under the G-WDR, with the expectation that the watershed-wide WDRs would be ready for 2005. 1. PL to supply specific requested information on conditions in the
Freshwater and Elk watersheds to enable WQ staff to evaluate the cumulative
impacts of sediment generation from logging. PL failed to provide the requested information, especially in regard to landslides, and, accordingly, WQ was unable to issue the permits in time to allow logging on January 1. PL began a public campaign to intimidate the Regional Board and its Executive Officer, claiming that if they cannot log 4 THPs, they will face bankruptcy, forcing hardships on their employees and the community. Ms. Kuhlman complied with PL's "emergency" request, and approved parts of 4 THPs in these two watersheds under the G-WDR, allowing PL to resume logging these watersheds as of January, 2005. She stipulated that these approvals were made for PL's financial convenience. Because there is no statutory authority for WQ to enforce a partial approval of a THP, the purview of CDF, Ms. Kuhlman ordered PL to submit weekly reports detailing the extent of logging (acres logged, percentage of canopy removed). In their first reports, PL reported low amounts of logging reflecting only those operations which removed timber (i.e., falling, yarding and hauling) from the watershed. PL claimed that the felling of trees does not constitute a reportable logging operation because it does not discharge sediment. According to WQ, the watershed-wide WDRs are based on a methodology developed by WQ staff in conjunction with scientists from the Redwood Science Laboratory. The methodology relies on readily available information, such as that from aerial photographs, ground "truthing," and WQ monitoring. It is designed to provide WQ with the capacity to determine how much ground disturbance and canopy removal (the prime factors affecting sediment generation) is allowable without impeding the recovery of the impaired watersheds in a timely manner. WQ has concluded that in Freshwater and Elk, it is the only way for WQ to reliably abate nuisance flooding. This methodology has been peer reviewed and refined by an independent, blue ribbon panel (whose members included those chosen by PL) of watershed scientists hired by the RWB in 2003. It provides an interim approach until more detailed and extensive data can be acquired. PL has claimed that these lands are covered under provisions of the HCP, that the HCP is "working," so WQ has no right to limit logging. In requiring watershed-wide WDRs, the NCRWQCB is requiring specific data to support PL's claim. Instead of complying with the NCRWQCB orders, PL has most recently proposed that the 12 THPs be approved under the G-WDR, a request inconsistent with the function and requirements for enrollment of THPs in the G-WDR. In exchange, PL has promised to: o Provide drinking water for affected residents in mainstem Elk, oPut $100,000 into an escrow account to pay for feasibility studies
of stream-channel sediment removal and raising bridges and roads These will be discussed at the meeting on Wednesday. Facilitated mediation between PL and stakeholders has already been tried. It failed due to PL's refusal to engage in any exchange, or provide any information, which could potentially lead to a reduction in its rate and extent of harvest. PL relies on the argument that the sediment "savings" associated with their logging operations and mitigations far exceed the sediment that could be discharged by the operations themselves. This "Zero Net Discharge/ Negative Net Discharge (ZND/NND)" approach has been rejected by numerous scientists, including WQ staff, because of the spatial, temporal, and qualitative disjunction between sediment "saved" from discharge and sediment generated by the operations themselves. Furthermore, the models PL employs to estimate sediment savings exaggerate
the savings, minimize the estimated discharges, are heavily dependent
on subjective operator inputs (easy to cheat), and are untested. Objective
scientific reviewers have called PL's primary model, WEPP, inappropriate
for PL's ownership (See ISRP report: "Return overland flow dominates
in upland forested areas where rainfall typically occurs as high frequency,
low duration events, as is the case in Humboldt County, which limits
the applicability of WEPP to these watersheds. The WEPP manual states
that WEPP is unsuitable for complex watersheds, partly for this reason."
51 http://www.swrcb.ca.gov/rwqcb1/Agenda/01_2003/item12_ISRP_Report.pdf) PL's refusal to submit accurate or adequate landslide and other data has caused the NCRWQCB to lose trust in PL's ability or willingness to act in good faith. PL's claims have been viewed in the media (Sacramento Bee, LA Times, Eureka Time-Standard) as disingenuous attempts to complete the liquidation of PL's assets in furtherance of Hurwitz's stated goal at the outset of Maxxam's takeover of PL in 1985: "The function of PL is to throw off cash flow." HUMBOLDT WATERSHED COUNCIL PL's trump appears to be financial blackmail. That the fate of a company of PL's size and history could turn on a few THPs reflects the interest payments on the staggering debt load imposed on PL by its parent Maxxam. It also reflects PL's liquidation of most of its merchantable timber in 20 years, such that PL has no flexibility with respect to logging, or any financial cushion. All of PL's timberlands, "owned" by ScoPac were mortgaged, along with all of ScoPac's assets, in the last refinance of 1998. This precarious position cannot change due to the debt pressure, and low inventory. History teaches us not to rely on PL's promises. PL has already breached nearly every substantial component of the HCP: Before the HCP, PL misrepresented its volume of old growth, exaggerating
it by at least 25%, which had two results: Afterwards, it "corrected" the inventory, which resulted
in In addition, WQ staff have expressed three concerns about PL's threats of bankruptcy:
2. The development of a watershed-wide WDR is an unprecedented and very worthy goal. However, PL shows no sign of cooperating in that effort anyway. 3. Compromise will lead to enhanced protections for Freshwater and Elk. Only after liquidation, at which time those virtual protections will evaporate, or become moot due to over-logging, and probably bankruptcy (or worse, timberland conversion into real estate). Bankruptcy may be Hurwitz's exit strategy. If he can blame PL's failure on the Water Board, he can escape liability to the bondholders, and sue the state for Takings. Although the latter is absurd due to the massive profits already extracted from PL, the former is very likely. In the trade, it is called "Bankruptcy for Profit," and Hurwitz is an acknowledged master of the game. Unfortunately, only one party, Hurwitz, profits. The costs are externalized onto everyone else. Several lawsuits, including those by affected residents, PL's insurance company (which argues that PL knew of the landslide risks associated with their logging in Elk R and Stafford, and therefore intentionally harmed people, acts not covered by the policy), and the District Attorney (DA), stand to block Hurwitz's exit, and force his funding of critical rehabilitation efforts in the watersheds (which translates into jobs). The DA lawsuit charges PL with committing fraud during the HCP negotiations in order to attain a rate of logging that the evidence showed would violate water law and worsen nuisance flooding. That fraud continues to bear fruit for PL, and the consequences of it are at the heart of the Water Board efforts today. PL and their parent Maxxam are using the stick of bankruptcy and layoffs, and the virtual, but meaningless, carrot of more biased pseudo-science and non-mitigation to get what they want. Capitulating to hostage takers and blackmailers only nourishes them and assures repetition of the behavior. It is clear why PL wants their hired facilitator and yet another hired consultant to further muddy the water. I suggest a novel approach: oEnforce the Basin Plan. If PL refuses to provide information for the Report of Waste Discharge (RoWD) now, what makes anyone think they will do so later? oImplement the State Water Board incremental enforcement policy if PL fails to comply with the RoWD, and continues to violate the CAOs, refer the problem to the DA for civil penalties oStop the watershed carnage. Allowing PL to further degrade WQ in order to study and mitigate the damages later makes no sense, particularly in light of PL's history: there will be no later. oSuch enforcement action may be the only way to hold this company accountable, to its employees and to affected residents, and send a necessary message to other companies who lie, cheat and steal that such non-compliant behavior will be met with substantial penalties. Excerpts from ISRP: http://www.swrcb.ca.gov/rwqcb1/Agenda/01_2003/item12_ISRP_Report.pdf "As long as logging and road effects occur at the present rate
it "Even if fully implemented as envisaged, it is the Panel's judgement that the HCP/SYP/THP structure cannot be relied upon to meet water quality objectives due to eight critical shortcomings. These shortcomings are outlined below. Further, because the HCP/SYP/THP process has not been implemented in a manner consistent with its design, there are serious negative implications for water quality, flooding, and Cumulative Watershed Effects (CWE)." (28) "However, the prescriptions do not address the cumulative impact of the high harvest rate. This is a failure of the feedback from watershed analysis to Timber Harvest Planning and a represents a flaw in the management system." (32) "In the Panel's review of the Watershed Analysis, we did not find a credible scientific basis in support of these and other relaxations in the "Final Prescriptions based on Watershed Analysis for Freshwater Creek." (33) "Return overland flow dominates in upland forested areas where rainfall typically occurs as high frequency, low duration events, as is the case in Humboldt County, which limits the applicability of WEPP to these watersheds. The WEPP manual states that WEPP is unsuitable for complex watersheds, partly for this reason." 51 |
||||||
|