Regarding the proposed logging of 1000 acres near Lexington Reservoir by San Jose Water Company:

WHEREAS, the Lexington Reservoir was built in the 1950’s to provide water for the population of the Santa Clara County area by meeting the need for human utility and consumption, and

WHEREAS, the San Jose Water Company and the Big Creek Lumber Company have proposed logging around Los Gatos Creek, which is the source of water for two local water districts and the Santa Clara Valley Water District water which is stored in Lexington Reservoir, and

WHEREAS, forests produce and preserve water through a complex array of trees, shrubs, ground covers and roots slows runoff from rain and snow, and water is purified as it percolates though the soil and into aquifers.  By slowing runoff, forests also reduce floods and erosion, minimizing the sediment entering streams and rivers, and

WHEREAS, logging frequently causes the deterioration of a watershed, thus contaminating drinking water supplies, and

WHEREAS,   logging large merchantable trees from forests frequently increases the risk of forest fire, and

WHEREAS, it is important to prevent the reoccurrence of fire devastation such as the 1985 fire in Lexington which consumed 14,000 acres, 42 homes, and caused the evacuation of 4500 people and approximately $7 million in damage, and

WHEREAS, our forest resources are a resource which enable a biodiversity of species, water which is cleaned by filtration through forest soils, critical oxygen supplies that combat global warming, and contribute greatly to the environmental health of our planet, and

WHEREAS, logging frequently fragments and degrades wildlife habitat such as for the endangered California red-legged frog as well as osprey, Cooper’s and Sharp-shinned Hawks;

THEREFORE, let it be resolved that The Loma Prieta Chapter of the Sierra Club opposes the San Jose Water Company’s and Big Creek Lumber’s stated plan to log large merchantable trees along Los Gatos Creek.

NAIL has just learned that San Jose Water Company has withdrawn the currently-submitted NTMP logging application.  In a press release today, SJWC stated that they withdrew the plan in order to work on the issue of fire, and because the plan lacked information requested by CDF, (reviewers of the plan.)

Below is NAIL's official press release regarding the plan withdrawal.

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Many Los Gatos residents feel they've received an early holiday present upon hearing news that under the recommendation of the California Department of Forestry, the San Jose Water Company has withdrawn their plan to log the Los Gatos Creek watershed. SJWC’s proposal to log over 1000 watershed acres has united the affected community in opposition.  Hundreds of citizens have attended resistance meetings over the past few months. Over 2,000 signatures have been collected opposing the plan and thousands of dollars have been raised to fight the plan. 

The withdrawal of the logging permit application reinforces the position held by Neighbors Against Irresponsible Logging (NAIL) that the plan to harvest the watershed was deeply flawed and poorly executed from the very beginning.  NAIL believes that logging a healthy forest, in a watershed, adjacent to thousands of residents was and always will be a bad idea.  

Despite SJWC’s desire to resubmit a plan in the future, the issues of logging in the Los Gatos Creek watershed remain: increased fire danger, threats to drinking water, harm to the environment, harm to residents' quality of life and harm to the safety and value of their property. NAIL, and the thousands of residents which NAIL represents, will continue to oppose any plan to log this healthy forest and compromise water quality.

NAIL intends to continue the fight to provide our watershed the same protection afforded to watersheds for the cities of San Francisco, Santa Cruz, Seattle WA, Portland OR., Marin County and the area served by the  East Bay Municipal Utility District (EBMUD). All these locations prohibit logging in their watershed, while protecting water quality and maintaining fire protection. NAIL and affected residents are asking that the Los Gatos Creek watershed be afforded similar protection.

We urge the San Jose Water Company to seek a conservation easement on their property to protect the watershed and prohibit logging.  Any re-submittal of a logging plan that does not afford the Los Gatos Creek watershed the same protection as that afforded to watershed for virtually every large municipality on the West Coast will be opposed by NAIL.

Neighbors Against Irresponsible Logging - NAIL

 

 

John Tang
San Jose Water Company
1265 South Bascom Avenue
San Jose, CA 95128

Dear Mr. Tang:

Steve and I appreciated the opportunity to meet with you and Andy Morse of Big Creek Lumber yesterday. The following summarizes information you provided:

1. San Jose Water (SJW) acknowledges that its helicopter logging will violate the County Noise Ordinance.

2. SJW refuses to be subject to the County Noise Ordinance and will not insert any language in the plan requiring it to comply with that law.

3. SJW’s logging plan contains no limitations on the duration of logging in each area.

4. SJW refuses to insert in the plan any limitations on how long it can log each area.

5. SJW has elected to locate a helicopter landing and service area within 900 yards of the elementary school.

6. SJW made no attempt to contact the school administration prior to filing its plan.

7. SJW has decided to locate another helicopter landing within 150 yards of Loma Prieta Avenue.

8. SJW made no attempt to contact residents in the Loma Prieta neighborhood prior to filing its plan, except to ask a few residents if they would allow their property to be used for a landing site.

9. SJW will conduct its logging operations using twin-engine, twin-rotor Chinook helicopter airships.

10. It is evident that SJW has made no attempt to determine how loud noises over a sustained period adversely impacts children. It did not consider how such noise disrupts their sleep, impairs their development, generates fears, impairs their hearing, or impacts learning ability.

11. In fact, SJW has the opinion that generating helicopter noise near schools and homes at levels not permitted under County law over a sustained period does not constitute a significant adverse environmental impact.

12. SJW executive officers reviewed and approved this logging plan.

13. SJW acknowledges that the forest contains old growth redwood trees.

14. SJW has made no attempt to determine the number of old growth trees in the forest.

15. SJW will log old growth trees when its logging contractors determine that it is not feasible, due to operational or safety concerns, to allow them to stand. Also, although SJW has stated that the FAA strictly regulates helicopter operations, neither you nor Mr. Morse were familiar with such regulations and could not provide any information regarding them. You agreed to look into the issue and provide information to me following our meeting.

If you believe that we have misunderstood your statements regarding the information described above, please contact me at your earliest opportunity. Please note that the purpose of this letter is to confirm information you provided on issues of greatest concern to us. It does not purport to describe all of the comments and opinions expressed by you and Mr. Morse during our meeting.

Sincerely,
Jim Cracolice

cc: Richard Roth, San Jose Water Company

The San Jose Metro has published a well-researched article regarding NAIL's efforts and the logging issue.  Please go to this website to read it:

 

An excellent article regarding NAIL's position and the logging issue in general has been printed in the San Francisco Chronicle.  Please go to this website to read the article:

 

Hi Jodi Frediani

This email is to seek clarification on the procedure and time-line for the SJWC NTMP. It attended the Sept. 11 meeting and heard your presentation there, have downloaded, made a hard copy and have studied  the set of slides you used at that meeting, and have also made a copy and studied the later posting on the NAIL Forum by Terry Clark on the NTMP process. I attended the most recent NAIL meeting on Nov. 14. After all of this, I am still very unclear about the process and just where we are in the process today.

 

I will try to do my best to answer, but some of your questions don't have firm answers at this time.  Thanks for your interest!

1. According to your chart, the CDF has 10 days to do the 1st Review. The 1st Review has been done and I have a hard copy of it and have studied that too.

Question 1a: At this stage, has the NTMP been "accepted" for filing? If so, I do not understand how the plan can be accepted for filing by the CDF until SJWC has provided at least minimally satisfactory responses to the 78 questions raised in the 1st Review. Please clarify.

 

The NTMP was accepted for filing on October 28.  I agree with your assessment that it should not have been accepted with 11 pages of unanswered question including,”Does SJW even qualify to submit an NTMP?”  But CDF thought differently. See my posted letter to CDF on this issue[1].

I think they think they can get away with this based on when the "clock" starts ticking.  The information I gave out re the start of the "clock" (the 45 day minimum review period) which is posted on the NAIL webpage is correct for THPs, but incorrect for NTMPs.  Rather than starting the clock when the plan is accepted for filing, in the case of an NTMP, it is starts at the completion of the pre-harvest inspection (PHI). 

(Forest Practice Act 4593.7 Review of plans; non-conforming plans; denial of plans; appeals. (a) The director has 45 days from the date the initial inspection is completed as provided in Section 4604, or a longer period mutually agreed upon by the director and the person submitting the nonindustrial timber management  plan, to review the plan to determine if the plan is in conformance with the rules and regulations of the board and this chapter."

The PHI is supposed to be held within 10 days of filing, but Big Creek, in this case, agreed (or maybe even volunteered) to have the PHI(s) after Thanksgiving, on the grounds that there should be a multi-day review and it would not be possible to  find acceptable dates before then.  (4604 says 10 days from filing or longer if agreed upon).

So, in reality, the public and agencies will not be shorted review time on the new information (requested in the First Review questions) that must be submitted prior to the PHI. However, there are other significant issues which I have addressed in my posted letter[2].

Question 1b: You said in your slides that once the plan is "accepted," the "clock starts ticking." I have understood your point here to be that within 10 days of acceptance, the PHI has to take place? If the NTMP has been accepted, then the 10 days have already gone by and the PHI is supposed to have taken place. Has it? I understand that it has not. Not only that, I understand there is still great controversy about who will be on the Review Team, Aldercroft Water District and the Santa Clara Valley Water District, for example. If the PHI has not taken place, what is the explanation?

 

In my power point presentation, I tried to accurately and simply reflect the Forest Practice Rules.  With the exception of the time the clock starts ticking (see above), I believe the rest of the information is accurate.  (Some rules that apply to THPs apply to NTMPs, but some are different.) However, one has to realize that the time frame just refers to minimums.  I encourage you or anyone interested in following more closely to go directly to the Forest Practice Rules themselves.  A spiral bound book can be purchased from CDF for $5 or the rules can be accessed on-line.  A link can be found on CRFM's home page at www.crfm.org. Finding and keeping track of the various rules that apply to a given plan is more like a convoluted treasure hunt, rather than an arcane secretarial task.

In this case I was told by CDF that Big Creek requested that the PHI take place after Thanksgiving.  I also understand that CDF is looking at a three-day PHI and is currently trying to find acceptable dates for all agencies involved.  Since this is such a high-profile plan, it appears that agencies will be sending out multiple participants for the PHI.  I am told that there will be approximately 35 people in attendance.

Tentative dates were originally set for December 7, 8 and 9. The tentative dates were then changed to December 14, 15, and 16, but these are no longer valid. The PHI may get postponed until after the first of the year.

Question 1c: Does SJWC file an amended plan in response to the 1st Review? An amendment? Or what? When and how does one get a copy of SJWC's responses? Are these responses in writing?

 

Per my response to Question 1a above, the clock has not started ticking yet; not until the completion of the PHI.  However, the issue is really moot, as the review for this plan will go way over the minimum 45 day required review period.

SJW will submit revised pages in response to the 1st Review questions due prior to the PHI. I believe the revised pages will be posted on CDF's ftp website:

 

ftp://thp.fire.ca.gov/THPLibrary/North_Coast_Region/NTMPs2005/1-05NTMP-022SCL/

 

Or anyone can request a copy of the revised pages for copying costs from CDF Felton office:
831-335-6740

The change pages will be incorporated into the NTMP that was accepted for filing.  The pages are to be noted as revised and dated.  They are to replace the original pages where ever changes have been made.  This leads to lots of paper and the opportunity for much confusion as revised pages continue to get added and replaced throughout the review process.

 
2. Your charts seem to say that comment letters to the CDF should be sent in the 10 day period "after the last significant info is received by the CDF."
At the Nov. 14 NAIL meeting, we were told that comment letters from the public can be sent now (and the NAIL Steering Committee members present seemed to be suggesting that they should be sent now).

Question 2: But how can a member of the public send a comment letter to the CDF when we do not know what the plan ultimately is going to contain (presumably SJWC has not yet responded to the questions in the 1st Review? In other words, how does a member of the public make an intelligent comment at this stage?

 

My power point showed the latest date for submission of comments.  Comments can be submitted at any time once the plan has been filed.(A number of people have already submitted generic comments.)  Needless to say, you are quite correct that it is difficult to intelligently comment at this stage of the game hence, the suggestion to wait until the plan has morphed sufficiently, based on PHI reports and Review Team suggestions, etc. The more specific comments are to particular issues addressed in the plan, the more effective they will be,  Though volume sends a clear message that this plan will impact a huge population.

3. Public Hearing. I was quite surprised to hear at the Nov. 14 meeting that the "decision makers," (I thought there is only one, namely, the CDF Director) is not even present at the Public Hearing.

 

Question 3: Is this true?

 

YUP. The public hearing is more or less just an opportunity for the public to vent. CDF hopes to gather pertinent info at the hearing, but does not offer any.  Nor does it usually engage in dialog or answer questions.  At the recent hotly contested Lompico public hearing with 250+/- people in attendance, CDF did give the RPF an opportunity to respond to questions at the end.

The public hearing is either tape-recorded, or video-taped.  Rich Sampson, RPF, CDF Forest Practice Officer, who will be present at the hearing, will head up the NTMP review and the PHI. I expect that Rich Sampson will make PHI recommendations for CDF. However, Anthony Lukacic, CDF Santa Rosa, has taken over as Review Team Chair and will most likely be the one who makes the Review Team recommendations.  I have only been aware of one plan this past year where Mr. Luckacic actually attended the PHI.  I find this more problematic than the fact that he does not attend the Public Hearing, because he is making significant decisions without having been on the ground to see things first hand. Don’t be surprised, however, if he shows up for this one.

 
4. Public Hearing. You indicate that speakers at the Public Hearing each have from 3-5 minutes to speak. If this is generally true, is there no mechanism for an organization such as NAIL to make a coordinated, longer presentation? Many of us have been looking to NAIL to develop a coordinated response to all of the issues being raised, or at least the key ones, where necessary using  experts of various kinds who will speak to the issues and provide references or source material to support their positions. If no person has more than 3-5 minutes, it is hard to understand how a "coordinated presentation" can take place.

 

NAIL members can make a "coordinated" presentation simply by dividing up topics so that each person speaks on a different issue or different portion of each issue in three minute increments. NAIL can certainly ask to be given a block of time, but I have never seen a CDF public hearing be that accommodating. It's a pretty basic process, nothing like other hearings or other official Boards or bodies.

Only counties with Special Rules (Santa Clara, Santa Cruz, San Mateo, etc.) even have public hearings.  Most hearings go unattended.  FYI, CDF wanted Santa Cruz County to provide two armed guards for the Lompico hearing.  The county declined to do so.  Needless to say, the hearing was passionate, but uneventful.  People were in attendance with their children and babies.

5. Public Hearing. If one can speak only 3-5 minutes at the public hearing, but has more materials than can be verbally submitted in that period of time, is there a mechanism by which a speaker at the Public Hearing can submit further written materials to support his or her remarks, such as members of Congress often do when they submit in writing "extended remarks" elaborating their points made verbally on the floor of Congress?

Question: In other words, just how does a "coordinated presentation" on all the key issues get made to the "decision maker(s)"?

 

I consider the public hearing an opportunity to show CDF, the Board of Supervisors, the Media and the community how much concern and opposition there is to a contentious plan. If you have legitimate, significant comments based on issues of environmental significance or issues of public health, safety and welfare, I recommend that those comments be submitted in writing, whether or not they are made at the public hearing. CDF is required to provide a written response to all such comments, both those made during the public hearing and those submitted in writing.  They are not required to respond to philosophical issues. Such written material is submitted to Santa Rosa and hopefully, the “decision maker” reads them.  A copy of the video of the hearing will also be sent to Santa Rosa. I do expect CDF personnel from Santa Rosa to be present at the PHI.

6. Review Team Meeting.

Question: Does the Review Team Meeting, at which presumably the Review Team Recommendations are prepared, take place before or after the Public Hearing? And if before the Public Hearing, how do the public inputs at the Public Hearing even get taken into consideration at all by the Review Team?

 

The Review Team (RT) meeting is always held after the Public Hearing.  If there are issues to be incorporated at that time, the opportunity is there.  However, there is also the opportunity to fine tune the plan based on written testimony as well.  With the RT occurring after the PH, it is difficult for the public to comment at the public hearing on the "final" proposed version of the plan.  Most of the "wheeling and dealing" takes place at the RT meeting(s) (often referred to as Second Review).  This is where the agencies try to hammer out their differences with the plan RPF. 

7. Public Hearing

.
Question: What event or point in this whole procedure sets the time frame within which the Public Hearing must be scheduled, and how many days is that time frame?

 

The County must request a public hearing within 24 hours of the PHI.  And CDF is required to schedule the hearing within 25 days of the request.  I spoke with Rich Sampson and he seemed to think the rule did not allow for CDF to schedule more than 25 days after the request, however, this has already happened, as the County requested a PH awhile ago. The county has submitted a second letter requesting that the PH take place after January 1.

I know NAIL wants the PH to be scheduled after the first of the year and has made a request for such to CDF.

CDF is only required to notice the public 5 days in advance of the PH, but it is possible that the 'tentative' date will be know prior to that.
   

8. Official Response to Comments

Question: Does the Official Response to Comments take place only after the CDF Director has already approved the plan?

 

Yes.

9. Appeal. You indicate in your charts that there is a need to get a vote of the Board of Supervisors to appeal before the Decision Date.

Question: How can the Board of Supervisors vote to appeal before the Supervisors even know what the decision is going to be?

 

They can meet and agree to appeal if their staff non-concurs or intends to non-concur and finds that their concerns are not addressed.  All RT members act in an advisory capacity only.  CDF does not have to incorporate mitigations requested by other agencies.  If they do not, some of those agencies, including the County, may non-concur.

If the Board of Supes waits till after the plan is approved, there is the possibility that timber operations could commence prior to the Board of Supes decision to appeal.

 

Question: If the Board of Forestry decides not to hear the appeal, what remedy does the County have? Litigation immediately?

 

Either the County or the public can choose to litigate immediately.

10. Other. My impression is that there are agencies in addition to the CDF whose concurrence is specifically needed for the NTMP to be approved, or who have laws that first need to be complied with by the Timber Owner. An example of the latter would be the Santa Clara County Noise ordinance. Are these all preempted by the decision of the CDF?

 

My understanding is that local ordinances are superceeded by State regulation, ie. the Forest Practice Rules in this instance.  The Review Team members have the ability to non-concur.  CDF prefers to resolve non-concurrences prior to plan approval, but this does not always happen.  The Regional Waterboard can actually stop plan approval with an unresolved non-concurrence (recent legislation gave them this power).

 

The public can still bring up the issue of noise as an issue of public health, safety and welfare.  Some people work at home, work nights and sleep days, etc. According to my understanding, the local ordinance cannot simply be invoked.

There are also some other points, such as the case of Santa Cruz County vs Big Creek before the California Supreme Court which ultimately could have a bearing on this NTMP. I do not not been able to learn the status of that case on the Supreme Court's docket. As you know, the issue there is whether the CDF (as opposed to the County) has jurisdiction on the question where logging can occur, as well as over how it occurs. I also have not been able to find out from the County of Santa Clara what its position is, i.e., whether it takes the legal position that its zoning ordinances give it authority over the "where" logging can be done, to the exclusion of the CDF. In trying to find out, I had the impression that Santa Clara County was more or less oblivious to this point, or at least I could find no one who could speak to the issue. That was, however, about 2-3 weeks ago, so maybe it is being actively considered now.

 

I am not sure that the court case you refer to will have an immediate bearing on this NTMP, if resolved prior to NTMP approval.  The case will determine whether counties have the right to determine where logging takes place, not how logging is conducted.  The only way I know of that the County could determine that logging should not take place on SJWC lands would be through zoning. This would be a complex process involving public hearings, etc.  I suppose the County could make an independent determination that this "area" is not suitable for logging, but that would be something to be discussed with the county.  This would take a vote of the Board of Supervisors. Of course, all this would depend on the outcome at the State Supreme Court.

San Mateo and Santa Cruz Counties currently have ordinances which prohibit logging in certain locations. San Mateo has a 1000' no-cut buffer adjacent to habitable structures and Santa Cruz County has limited industrial logging to certain zone districts. The counties are in two different appellate districts.  In the case of San Mateo County the appellate court upheld the county's right to determine where logging takes place.  In the case of Santa Cruz, the court determined that prohibiting logging was, in fact, engaging in the "conduct" of logging and therefore not in the county's jurisdiction.

Both appellate courts have determined that only the state has jurisdiction over the conduct of timber operations.  In my last communication with outside council for Santa Cruz County, I was informed that the case has not been docketed for the State Supreme Court yet and there is no known date.  I was told I would be informed when a date is set.

Regards,
Bill Moore
 
Yours,
Jodi Frediani

November 29, 2005

VIA FIRST CLASS MAIL & FACSIMILE

Richard Roth, President San Jose Water Company
374 West Santa Clara Street
San Jose, CA 95196

 
Dear Mr. Roth:

We would like to meet with you to discuss your plan to log the Los Gatos Mountains. Given the vast areas covered by your plan and the severe impact it will have on our community and our family, it is important that we meet at your earliest opportunity.

Upon our initial review of your logging plan, we find two aspects most disturbing. First, you plan to log 244 acres with massive, twin-rotor helicopters that will be flown near schools and neighborhoods. The plan openly acknowledges that these operations will generate horrendous noise. (Plan, Sec. IV, pp. 145-150.)

Incredibly, you have chosen to locate the landing strips for these helicopters within a few hundred yards of Loma Prieta Elementary School. Other landing strips will be located in a residential neighborhood. (Plan, Sec. II, p. 33.24.) Under your plan, children sitting in their classrooms will be subjected to the relentless blasting of helicopters flying near their schools, and local residents will be forced to endure the excessive noise and disruption caused by these airships. It is difficult to imagine how such a plan could have ever been submitted. Our children should never be forced to endure such noise where they live, play, and attend school. The levels of noise that you plan to generate will not simply be a nuisance, but it will in fact endanger our children’s health and well being.

Your plan threatens our own son. Although he is a beautiful and fearless little boy, when he hears loud noises, he puts his fingers in his ears and seeks to get away. Many children react to loud noises in a similar manner. Where are our children supposed to escape to as your helicopters roar relentlessly above their homes and schools?

I want to emphasize to you in the strongest terms possible that under no circumstances will we allow you to endanger our children, and we will take every lawful measure necessary to prevent you from doing so. We demand that you modify your plan so that the use of helicopters near schools and residential areas will be strictly prohibited.

Secondly, your plan makes clear that you intend to violate the Santa Clara County Noise Ordinance on a constant basis. In your plan you state that your twin-rotor, twin-engine helicopters will generate noise at 92 decibels when hovering and 85 decibels for flyovers. (Plan, Sec. IV, pp. 145-150.) Under Santa Clara County law, the maximum noise levels that can be generated in residential and school zones is 55 decibels. Although the law provides for some noise to exceed this limit, it can only occur for a short duration. For instance, noise is permitted at 70 to 75 decibels five minutes every hour and at 75 to 80 decibels for one minute every hour. No noise is allowed above 80 decibels. Yet your plan states that your helicopter operations alone will routinely exceed these levels.

Further, you have understated the levels of noise that will actually be generated by your helicopters. They typically operate at 95 to 105 decibels. And you have not disclosed any information as to the noise that will be generated by other logging operations, such as chain saws, heavy equipment, and cable operations. Generating this level of noise is not only a violation of the Noise Ordinance, but it creates a nuisance that violates the property rights of those that must endure it.

Certainly your company should not be above the law. Nor should it disregard the property rights of those living in the community near your logging operations. Therefore, we demand that you modify your plan so that it expressly states that the logging must comply with the Santa Clara County Noise Ordinance. We also insist that your plan be revised to eliminate the activities that you know beforehand will violate the Noise Ordinance.

Finally, it is evident that even early in this process there is significant public outrage over your logging plan. The public opposition goes well beyond the issues I have raised in this letter and is due to the far-reaching harms that your plan is certain to cause, or threatens to cause, both the community and the environment. If necessary, we will address those issues on another occasion. We understand that your principal motivation for logging is economic. Yet your logging plan is one that is certain to generate protracted and costly litigation and considerable bad will towards your company. In fact, the latter has already occurred.

Rather than proceed with your plan to log the mountain forest, we invite you to work with us in developing a plan that will protect the community, respect the environment and at the same time allow you to realize substantial financial profits. The best solution would be for your company to sell the property (while retaining water rights) or a conservation easement at fair market value to the agencies and conservancies interested in preserving this unique forest landscape. Given that you operate as a public utility water company and not a logging company, it seems to make far more sense to work with the community to achieve an outcome that we can all appreciate. We look forward to meeting with you. Please let us know the convenient times when we can meet. It is best to contact us by email at jc484@comcast.net.

Sincerely, Jim & Dawn Cracolice