At issue are the hundreds of pipes, ditches, culverts, landslides, and other erosion sites that pervade the Freshwater Creek, Elk River, Stitz Creek, Bear Creek, and Jordan Creek watersheds in Northern Humboldt County. As water gets channeled through these various conduits, it combines with pollution from clearcut- and herbicide-ladened hillsides, and then gets dumped into streams and rivers. The California Department of Forestry (CDF), North Coast Regional Water Quality Control Board (Water Quality) and Environmental Protection Agency (EPA) all declared that the cumulative impacts from logging operations in these areas are severe.
"The reason every creek and river downstream from Maxxam/PL's land is so damaged by excessive pollution is because the company has acted as if the Clean Water law doesn't exist," stated Michael Lozeau, attorney with the Earthjustice Environmental Law Clinic at Stanford University. "No industry should have carte blanche to use California's waters as their personal pollution dumping ground," Lozeau added.
Under the federal Clean Water Act (CWA), it is illegal to discharge pollution into the waters of the United States from pipes, ditches, channels, conduits, or other conveyance points unless it is covered by a permit under the National Pollutant Discharge Elimination System (NPDES). Sediment source investigations by PL's own consultants show that hundreds of these "point sources" exist throughout Freshwater Creek, Elk River, Stitz Creek, Bear Creek, and Jordan Creek, and that these points have dumped hundreds of tons of pollution from clearcut hillsides into these streams and rivers. As logging rates have increased, so have the rates of erosion and the amount of pollution delivered by these sources.
The company has never complied with this provision of the law, and EPIC contends Maxxam/PL violated the CWA each time they discharged pollution from these points without an NPDES permit. EPIC's letter puts the company on notice for more than a million violations stemming from these illegal discharges as well as those that continue to occur.
"Since Maxxam took over Pacific Lumber in 1985, logging rates have doubled and even tripled across these watersheds, with entire drainages being cut-over in as little as five to ten years. This style of logging has brought extensive road networks, hundreds of landslides and countless other erosion sources into the areas, and sediment now chokes these streams and rivers," Cynthia Elkins of EPIC stated.
In a report released late last year by the North Coast Regional Water Quality Control Board, it shows that between 1994 and 1997, sediment delivery increased 1,161% in Stitz Creek and 1,365% in Bear Creek. The North Coast Regional Board is the state agency charged with enforcing state and federal water pollution control laws in the North Coast region.
In their report, Water Quality stated that "the Discharger is currently engaging in, and proposes to continue to engage in, further timber harvesting and related activities within the portions of the five impacted watersheds under its ownership, which will result in additional discharges and threatened discharges of sediment into the watercourses within these watersheds, causing further impairment of the Beneficial Uses of those waters than what has already occurred as a result of Discharger's past timber harvesting and related activities. As discussed above, review and approval of timber harvest plans under the current Forest Practice Rules and the [Habitat Conservation Plan] has not provided adequate protection for these watersheds in the past and will not assure protection or restoration of the beneficial uses in these watersheds." Beneficial uses include all natural uses of a waterbody, such as spawning habitat for aquatic creatures, domestic water uses or recreation.
"Many cities and other industries have spent billions of dollars on doing their part to keep California's waters clean. Rather than investing in true pollution control, Maxxam/PL chooses to spend their money on lawyers and hired guns to subvert the efforts of Water Quality every step of the way," said Earthjustice's Lozeau.
In 1998, the California Department of Forestry (CDF) informed Maxxam/PL that it was placing a moratorium on the approval of additional logging operations in Bear, Jordan and Stitz Creeks until certain requirements were met. In 1999, CDF required that Maxxam/PL evaluate whether increased flooding was related to logging in Freshwater Creek and the North Fork Elk River, and imposed a moratorium on approving additional logging operations until this and a watershed analysis were completed. Maxxam/PL has not met the requirements, but nevertheless, CDF backed down, and has begun approving logging operations in these areas. Nearly 3,000 acres of land in these watersheds are included in logging plans that could be approved at any time.
"One would hope that our state agencies could be relied upon to protect the resources that belong to all Californians, especially the health of our rivers and streams," Elkins said. "Unfortunately, that is not happening and that is why EPIC is stepping in enforce the law," she added.
EPIC is represented in this legal action by Michael Lozeau of the Earthjustice Environmental Law Clinic at Stanford University.