April 15, 2009
It has been a scary beautiful winter on the North Coast. Even in our wet-winter corner of California, shifts in weather are amplifying changes in climate. We're getting a preview of our future, on a world where water scarcity will make life more challenging for human communities, and may threaten the viability of species and ecosystems. EPIC is working to ensure that our rich, wild corner of the continent remains an ark for biological diversity, especially for keystone species like salmon.
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The changes we're seeing are consistent with the worse-case scenarios of leading climate-change models. These project that less water will fall from California's sky, in less frequent but more intense bouts--less as stable snowpack, and more as rapidly running-off rain. Longer, warmer summers mean nature wants more water, not less, while our human demands for water grow steadily greater. As a new report from the California Assembly legislative analyst outlines, the state's systems for water protection, allocation, and distribution to domestic, industrial, and agricultural users are failed, broken, or both. (See www.lao.ca.gov/handouts/resources/2009/water_rights_issues_perspectives_031009.pdf)
Collapse of Salmon Runs: Habitat Destruction, Hatchery System Produces Salmon Disaster
For salmon on California's North Coast, the last couple of years have gone from bad to worse. Wild populations of coho and Chinook salmon, as well as anadromous steelhead trout, have plummeted from levels that already qualified for listing as threatened or endangered. In alliance with California Trout and the Sierra Club, EPIC is fighting in state court to ensure that clearly inadequate coho `protections' not be used as window dressing on the policies and practices that are still driving salmon extinct. But it's one thing to block really bad rules, and another to secure really good ones; given the Board of Forestry's rejection of our proposed emergency coho rules package in the summer of 2008, and the Department of Fish and Game's failure to support those rules as promised, it seems likely further changes in both the Forestry Board and the fish and wildlife department will be necessary to secure real salmon protections. The need for change is one of the key reasons EPIC has opposed the confirmation of acting DFG head Donald Koch; at this writing still held up before the California Senate.
Meanwhile, far more attention has gone to the unexpected collapse of California's key commercial fishery, the fall Chinook run in the Sacramento River, which has resulted in fishing closures along the West Coast in 2008 and now again in 2009. An assessment of the Sacramento river stock collapse just released by the Pacific Fisheries Management Council (PFMC) strongly suggests that the hatchery production system, constructed to provide salmon after dams blocked some of the state's most productive habitat, have instead set the runs up for disaster when poor ocean conditions fail to feed increasingly uniform fish.
The PFMC report identifies ocean conditions unfavorable to salmon--including weak upwelling of cold, nutrient-dense water, warm sea surface temperatures, and low prey populations--as the immediate cause of the death of huge proportions of the 2004 and 2005 brood classes. These conditions, which have also caused severe reproductive failures in seabirds with similar diets, have been linked to global climate changes by various leading ocean ecologists, including Oregon State University's Dr. Jane Lubchenco. The fact that Dr. Lubchenco has just been confirmed as the Obama administration's director of the National Oceanic and Atmospheric Administration (NOAA)--parent agency of the National Marine Fisheries Service (NMFS), which has direct responsibility for salmonid protection and recovery under the federal Endangered Species Act--is one of the brighter bits of news for salmon these days.
The report notes that an underlying problem is the destruction of salmon spawning and rearing habitat:
The long-standing and ongoing degradation of freshwater and estuarine habitats and the subsequent heavy reliance on hatchery production were also likely contributors to the collapse of the stock. Degradation and simplification of freshwater and estuary habitats over a century and a half of development have changed the Central Valley Chinook salmon complex from a highly diverse collection of numerous wild populations to one dominated by fall Chinook salmon from four large hatcheries. Naturally spawning populations of fall Chinook salmon are now genetically homogeneous in the Central Valley, and their population dynamics have been synchronous over the past few decades. In contrast, some remnant populations of late-fall, winter and spring Chinook salmon have not been as strongly affected by recent changes in ocean conditions, illustrating that life-history diversity can buffer environmental variation. The situation is analogous to managing a financial portfolio: a well-diversified portfolio will be buffeted less by fluctuating market conditions than one concentrated on just a few stocks; the [Sacramento River fall Chinook] seems to be quite concentrated indeed.
Of course, by the same analogy, really bad conditions can seriously harm even stronger and more diverse stocks. See http://swr.nmfs.noaa.gov/news_media.htm for the full "Report on Sacramento River Fall Chinook Stock Collapse."
Even such grim official assessments may seriously understate risks to remaining wild runs. By focusing on the still-fishable large runs, and the substantial components of those runs produced directly by hatcheries in both the Sacramento and Klamath-Trinity systems, official analyses tend to obscure the precarious condition of these smaller wild runs, particularly in smaller rivers and streams. The California Department of Fish and Game, responsible for protecting the irreplaceable public-trust resource of wild salmon runs, doesn't even collect separate information on truly wild fish, lumping them instead with escapees from the hatchery system as "naturally spawning" fish. This is why citizen groups, including EPIC, are so focused on seeking to protect remaining wild runs from further habitat degradation.
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Readers with some history in the region may recall that in July 2001, EPIC initiated a historic lawsuit under the federal Clean Water Act (CWA), centered on the impacts of Pacific Lumber Company's actions in the Bear Creek watershed, a tributary of the Eel River. Our attorneys, led by Michael Lozeau, argued that discharges of sediment from Pacific Lumber's roadside ditches and culverts constitute a "point source" under the CWA. Point sources require permits, generally accompanied by conditions that should mitigate impacts. In 2003, federal judge Marilyn Patel agreed with us that logging road culverts are subject to regulation and permitting. Unfortunately, the 2007 bankruptcy of Pacific Lumber prevented the case from ever going to trial to set damages.
An Oregon district court came to the opposite conclusion in a very similar case in 2007, holding that the ditches and culverts discharging sediment from the Tillamook State Forest are not `point sources' under the law. That case, brought in 2006 by the Northwest Environmental Defense Center (NEDC), was appealed to the Ninth Circuit Court of Appeals, and remains pending. EPIC filed a friend-of-the-court brief to support NEDC, in an effort to ensure that the Ninth Circuit reaches the proper conclusion on this key question.
A new analysis of the EPIC and NEDC cases by forest engineering specialists, published in UC Berkeley's Ecology Law Currents, offers some help as the Court of Appeals weighs its decision. The article contends Judge Patel (and EPIC's attorneys) got the question right in the EPIC case, and the Oregon court is wrong in the NEDC case, as a matter of both science and law:
Recent judicial decisions addressing the impact of forest management on water quality suggest that EPA's clarification of regulations under the Clean Water Act (CWA) may become increasingly important....Two federal district courts recently reached conflicting decisions regarding this very issue. In Environmental Protection Information Center v. Pacific Lumber Co. ("EPIC"), the court found that ditches and culverts associated with a forest road drainage system fall within the CWA's point source category.... Differences in the rulings center largely on whether the disputed pollutant--fine sediment generated from forest roads--is discharged into streams naturally or as a result of human activity.
[W]e argue that ... the sediment generated from certain features of forest roads categorically meets the statutory requirements to be regulated under the CWA NPDES program. ... [R]oad drainage ditches, which deliver sediment directly into streams, constitute point sources under the CWA. ...[T]he argument for a nonpoint source classification is founded on a significant mischaracterization of the processes of sediment generation and delivery.
That seems right to us on the facts; the Court of Appeals is likely to decide soon how the law will be read. (The essay can be found at http://www.boalt.org/elq/cologyLawCurrentsVolume36Number4-Boston.php.)
TMDL Implementation Lawsuit Filed
On February 4, 2009, EPIC and allied environmental and fisheries organizations from the North Coast, including Friends of the Eel River and the North Coast Environmental Center, joined the Redwood Chapter of the Sierra Club in filing suit against the North Coast Regional Water Quality Control Board and the State Water Resources Control Board. The suit charges that the agencies have failed to adopt implementation programs for total maximum daily load (TMDL) requirements for a number of rivers and streams on the North Coast that are listed under the Clean Water Act 303(d) as impaired; they have also failed to incorporate these TMDLs and implementation measures into the North Coast Basin Plan.
Every two years the states are required under section 303(d) of the Clean Water Act to assess the quality of their waters. If any waterbody is not meeting the water quality standards, it is listed as "impaired"--in this case impairment caused by excess temperature and sediment. Once a waterbody is listed as impaired, a TMDL is developed, detailing exactly how much of any substance that has been identified as contributing to the impairment will be allowed into the waterbody. Implementation plans--or plans on how exactly the various users or dischargers to the waterbody will be controlled--contain the specific actions that will be taken to improve water quality to a healthy level.
The current lawsuit follows up on a 1995 suit brought to force the U.S. EPA to approve or establish TMDLs for 17 specific waterbodies, divided into 38 waterbody segments. Pacific Coast Federation of Fishermen's Associations, et al. v. Marcus resulted in a 1997 consent decree requiring completion of the TMDLs by December 31, 2007. EPA has largely completed the TMDL development requirements, but progress toward improving these waterbodies stopped there.
Without developing the required implementation measures and incorporating the TMDLs and requirements into the Basin Plan, actual improvement of the condition of these waterbodies will not occur. Though the degraded condition of these waters is legally recognized, there are no actions being undertaken--no restrictions have been placed on the source of the problem. Without these requirements being established we will continue to see declines in already imperiled species such as coho salmon, Chinook salmon, and steelhead trout, along with a corresponding decline of the people and species dependent upon them: our native, sport, and commercial fishers.
For more information: www.wildcalifornia.org
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TOC for Forest & River News, Spring 2009