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Showing posts from 2014

2014 Year in Review

In 2014, progress was made on a number of fronts with respect to protection of the Upper Echo Lake area:
the Forest Service agreed not to engage in any activity in furtherance of the Upper Echo Lake Hazardous Fuels Reduction Project;the Fish and Wildlife Service listed the Sierra Nevada yellow-legged frog as endangered;the Forest Service agreed to initiate consultation with the Fish and Wildlife Service regarding the effects of the Upper Echo Lake Hazardous Fuels Reduction Project on the Sierra Nevada yellow-legged frog; andthe Regional Water Quality Control Board reviewed Forest Service actions pursuant to the Upper Echo Lake Hazardous Fuels Reduction Project in 2013, determined that such actions were contrary to the Board's authorizing legislation, and required the Forest Service to take corrective action. Unfortunately, the Forest Service has yet to acknowledge its prior misconduct.  In addition, the agency has yet to abandon or reform the Project in order to protect the Upper E…

Forest Service Contests Scope of SEZs While Responding to Regional Board Concerns

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As already reported, in response to a request from the Lahontan Regional Water Quality Control Board, the Forest Service moved several slash piles placed in wetlands in violation of federal and state law.  Even as it did so, agency personnel continued to deny that the piles were improperly placed in Stream Environment Zones (or SEZs).  This e-mail (dated Oct. 20, 2014) from Forest Service employee Brian Garrett to Regional Board staff indicates that the areas where the slash piles were placed do not meet the definition of SEZs.


The determination what areas qualify as SEZs is made on the basis of the Regional Board's Basin Plan. It provides that SEZs are generally synonymous with wetlands and riparian areas, and that any one of the following key indicators are sufficient to establish that an areas is an SEZ:
evidence of surface water flowprimary riparian vegetationnear surface groundwaterlakes or pondsbeach soilssoils classified as Elmira loamy coarse sand or marsh The Basin Plan go…

Slash Piles Moved to Wetlands Indicate More Problems to Come

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As we reported here, the Forest Service recently moved a number of slash piles created in the course of implementing the first phase of the Upper Echo Lake Hazardous Fuels Reduction Project.  Below is a picture of one of the piles. The dark stained area of granite above the pile indicates seasonal waters flow directly into the area where the pile is now located the pond before moving downstream into the Upper Echo Lake basin. This action by the Forest Service -- in violation of a stipulated order and without consultation with the U.S. Fish and Wildlife Service -- is harmful to the local ecosystem.  Unfortunately, the Forest Service still intends to implement the second phase of the Project, which may actually increase rather than decrease local fire risk and which is certain to result in further environmental impacts that the agency did not disclose to the public or analyze under the National Environmental Policy Act.

Forest Service Takes Action to Protect Wetlands at Upper Echo Lake, but Ends Up Causing Further Harm and Violating Federal Law

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On October 17, 2014, a Forest Service crew entered the Upper Echo Lake Hazardous Fuels Reduction Project site and moved numerous slash piles of tree limbs and brush placed in wetlands approximately one year ago.  Unfortunately, the action was bound to be a failure from its inception for a number of reasons.
First, the agency has initiated consultation with the U.S. Fish and Wildlife Service under section 7(a)(2) of the Endangered Species Act regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog.While consultation is pending, section 7(d) of the ESA prohibits the agency from implementing the Project. Therefore, the October 17, 2014, activities were initiated in violation of federal law.
Second, the agency entered into a court-ordered stipulation whereby it “resolved to take no further on-the-ground activities on the project until consultation is complete and, in any event, no on-the-ground activities in 2014.”  The October 17, 2014, activities were initi…

Mountain yellow-legged frog identified as one of ten "vanishing species"

A report issued by the Endangered Species Coalition catalogs "ten species our children may never see," including the mountain yellow-legged frog.  In the report, the Coalition states "more than 95 percent of southern Sierra Nevada and Southern California populations have gone extinct, and remaining colonies have only about ten adults."  A number of news outlets covered the release of the report, including the Washington Post and Sierra Sun Times.

Forest Service Agrees to Consult with Fish and Wildlife Service regarding Project

In a stipulation signed by the United States District Court for the Eastern District of California, the Forest Service committed to engage in consultation with the U.S. Fish and Wildlife Service regarding the effects of the Upper Echo Lake Hazardous Fuels Reduction Project on the endangered Sierra Nevada yellow-legged frog.  The agency also agreed to halt all on-the-ground Project activity through 2014, and not resume any activity until consultation is completed.  The stiplation includes the following statement:
"The Forest Service has ... determined that it will consult with the Fish and Wildlife Service regarding potential impacts to the frog, and has resolved to take no further on-the-ground activities on the project until consultation is complete and, in any event, no on-the-ground activities in 2014. In addition, the Forest Service is committed to taking no further activities without providing at least 35 days’ notice to Plaintiff." The Forest Service's decision cam…

Forest Service Stipulates to Delay Cutting to October 15, 2014

Previously, in a post located here, we explained that the Forest Service agreed not to implement phase two of the Upper Echo Lake Hazardous Fuels Reduction Project until September 1, 2014, at the earliest.  The agency has since agreed to further delay phase two to October 15, 2014, at the earliest.  The Forest Service may agree to further delays in order to address issues raised about the agency's compliance with federal law.

Efforts to Reintroduce Endangered Yellow-Legged Frog Proceed Parallel with Forest Service Activities that May Affect the Species

Brian Freiermuth has reported on efforts to reintorduce Sierra Nevada yellow-legged frog to the Desolation Wilderness to bolster existing populations.

Forest Service Issues Letter Committing to Seek a Programmatic Biological Opinion to Cover Agency Impacts on the Endangered Sierra Nevada yellow-legged frog

In a letter to persons that hold permits from the Forest Service dated June 23, 2014, the agency indicated it has initiated "formal consultation" under section 7(a)(2) of the Endangered Species Act with the Fish and Wildlife Service.  The letter indicates that the Region 5 office has taken the lead in consulting with the Fish and Wildlife Service to develop "a programmatic Biological Assessment and Biological Opinion" to include affirmative Forest Service actions that may affect the Sierra Nevada yellow-legged frog.  Among the recipients of the letter were persons who hold permits for cabins at Upper Echo Lake.  It is unclear whether the Upper Echo Lake Hazardous Fuels Reduction Project will be among the "affirmative Forest Service actions" included in the consultation, although the Project is within the known historical distribution of the species, the Project area includes viable habitat for the species, the Project area is proposed for designation as c…

Murphy Files Amended Complaint

On July 8, 2014, Dr. Dennis Murphy filed a second amended complaint in his case alleging violations of law by the U.S. Forest Service.  It includes allegations that the agency violated the Administrative Procedure Act, Endangered Species Act, and National Environmental Policy Act.

El Dorado Irrigation District Monitoring Reports Confirm Yellow-Legged Frog Presence Adjacent to Upper Echo Lake

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Over the past 12 years, the El Dorado Irrigation District has conducted surveys at Upper Echo Lake and other locations in the region.  In each year the District conducted surveys -- 2002, 2004, and 2011 -- the District located Sierra Nevada yellow-legged frogs at Camp Harvey West, a shuttered boy scout camp that used to operate on the west side of Upper Echo Lake.  A map of the location is set out below.
The second phase of the Upper Echo Lake Hazardous Fuels Reduction Project, which is slated to commence after Labor Day 2014, contemplates tree cutting, brush removal, and slash pile placement activities on the south and west sides of Upper Echo Lake, including in areas that constitute habitat for the yellow-legged frog.

Project Impacts on Environment Become More Apparent in Spring 2014

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Even in this extraordinarily dry year, the water quality impacts of the Forest Service's Upper Echo Lake Hazardous Fuels Reduction Project are apparent.  This photo shows a slash pile in a seasonal pond.

This photo shows a slash pile on the left hand side of the image below sheet runoff over granite down to Upper Echo Lake.
This next photo shows a slash pile adjacent to a readily recognized stream bed.  The Forest Service intends to burn these slash piles, which already number in the hundreds, in place.
This next photo shows a slash pile placed on top of a stream bed.  If the pile is burned, the residual material will certainly be transported into Upper Echo Lake.

Endangered Sierra Nevada yellow-legged frog sited adjacent to Upper Echo Lake

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In a report issued in 2011, the U.S. Forest Service indicated that two Sierra Nevada yellow-legged frogs were sited approximately 1 kilometer from Upper Echo Lake.  The species was listed as endangered by the Fish and Wildlife Service on April 29, 2014, as we explain here.  A portion of the map in the 2011 report that highlights the frog siting is set out below.

According to the fina listing rule, the frog is known to travel substantial distances in and adjacent to stream courses and, to a lesser extent, over upland areas at certain points in its life cycle.  A USGS map displaying Cagin Lake and the location of the frog sitings in relationship to Upper Echo Lake is set out below. These sitings together with the Fish and Wildlife Service's proposed rule designating the entire area as critical habitat for the frog provide strong evidence that the Upper Echo Lake Hazardous Fuels Reduction Project is harming the species.

Court Signs Order Clarifying that No Cutting will Occur until Labor Day 2014 or Later

On May 15, 2014, the United States District Court for the Eastern District of California signed a stipulation and order that extended the time for plaintiff Dr. Dennis Murphy and defendant the United States Forest Service to seek to settle a pending lawsuit over the Upper Echo Lake Hazardous Fuels Reduction Project.  The stipulation and order clarify that the Forest Service will not engage in additional tree cutting at Upper Echo Lake until Labor Day 2014, at the earliest, in order to allow the parties to continue settlement discussions and in light of an earlier request from the Echo Lakes Association to limit activity during the summer months.

Murphy submits new notice of intent to sue Forest Service for violations of the Endangered Species Act at Upper Echo Lake

Dr. Dennis Murphy has submitted to the U.S. Forest Service and U.S. Fish and Wildlife Service a 60-day notice of intent to sue the Forest Service for proceeding with the Upper Echo Lake Hazardous Fuels Reduction Project in spite of the recent Fish and Wildlife Service determination to list the Sierra Nevada yellow-legged frog.  The final rule provides that the Project site falls within the distribution of the species.  The proposed rule designating critical habitat for the species confirms this fact.  Although Forest Service personnel claimed, during the approval process for the Project, that no amphibians were present at the Project site, the facts belie this claim.  Further, a 2011 report by the Forest Service indicates that individual yellow-legged frogs were detected within less than a mile of Upper Echo Lake.

Fish and Wildlife Service lists Sierra Nevada yellow-legged frog as endangered

As described in this blog post, the U.S. Fish and Wildlife Service has listed the Sierra Nevada yellow-legged frog as endangered.  The historical range of the species includes the area surrounding Lower and Upper Echo Lakes.  The Fish and Wildlife Service has also issued a proposed rule designated the area as critical habitat for the species.

Lahonton Regional Board Issues Proposed Timber Waiver

The Lahonton Regional Water Quality Control Board has issued a proposed timber waiver and is seeking comments by March 28, 2014.  The proposed waiver provides that "[t]he Lahontan Water Board will consider adopting the Proposed 2014 Timber Waiver at its public meeting on April 9-10, 2014, at the Water Board’s South Lake Tahoe Annex office."

According to the Regional Board, the most significant changes were made to Attachment Q to the proposed waiver, which specifies requirements for piling and burning in riparian areas.

California law requires that any person discharging waste or proposing to discharge waste that could affect the quality of the waters of the state shall file a report of waste discharge with the Lahonton Regional Board.  If adopted, the Timber Waiver will waive waste discharge requirements for covered discharges resulting from timber harvest and vegetation management activities.

Article highlights plight of Sierra Nevada yellow-legged frog

A recent article in the Tahoe Quarterly highlights the plight of the Sierra Nevada yellow-legged frog.  The species is proposed for listing under the federal Endangered Species Act.  Among the factors that are contributing to its current, degraded status is the practice of stocking water bodies including Upper Echo Lake with trout.

Forest Service "Hazardous Fuels Reduction" Activities Extend to North and South Shores of Upper Echo Lake

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The U.S. Forest Service's Upper Echo Lake Hazardous Fuels Reduction Project commenced on September 30, 2013, while the agency was still in the midst of negotiations with the Echo Lakes Association and individual homeowners regarding proposed tree and brush removal on parcels surround the Lake.
The picture above shows slash piles on the north shore of Upper Echo Lake.  The Forest Service is actively removing trees and brush in low density, low risk-risk circumstances. The picture above shows Forest Service contractors and indiscriminate brush and tree removal on the south shore of Upper Echo Lake.

Forest Service Activity at Upper Echo Lake Threatens Water Quality

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The Upper Echo Lake Hazardous Fuels Reduction Project being implemented by the Forest Service threatens to degrade water quality in both Upper and Lower Echo Lakes.  The Project includes placement of large amounts of biomass adjacent to the lakes.  In the photo below, piles have been placed in the foreground.
This material, which the Forest Service plans to burn in place, could soon end up in the lakes with devastating consequences.

Lahonton Regional Water Quality Control Board Accepting Comments on Draft Timber Waiver until February 24, 2014

The California Regional Water Quality Control Board, Lahontan Region has issued a notice inviting comments on a Tentative 2014 Timber Waiver.  According to the notice, "[t]he 2014 Timber Waiver will continue to waive waste discharge requirements for timber harvest and vegetation management activities that meet specified eligibility criteria and follow specified conditions."  The Upper Echo Lake Hazardous Fuels Reduction Project is being implemented under the existing Timber Waiver.  Both the existing and proposed waivers allow projects to proceed that have water quality impacts without securing federal and state water quality permits.

Murphy Files Amended Complaint Challenging Fuels Reduction Project

On February 6, 2014, Dennis Murphy filed an amended complaint challenging the U.S. Forest Service's Upper Echo Lake Hazardous Fuels Reduction Project.  The amended complaint includes additional claims that the Forest Service is violating the Endangered Species Act and National Environmental Policy Act in proceeding with the Project.  The Project area is proposed for designation as critical habitat for the Sierra Nevada yellow-legged frog.  Additionally, much of the activity underway or planned could have substantial water quality implications as it is adjacent to Upper and Lower Echo Lakes.

Fish and Wildlife Service Reopens Comment Period on Sierra Nevada Yellow-Legged Frog

On January 10, 2014, the U.S. Fish and Wildlife Service published a notice that it was reopening the comment period on the proposed rule to list the Sierra Nevada yellow-legged frog and proposed rule to designate critical habitat for the species.  The notice is available here.  In its prior proposed rule to designate critical habitat, available here, the Fish and Wildlife Service proposed to designate Upper and Lower Echo Lakes and the surrounding area as critical habitat for the species.


The proposed rule designates 447,341 hectares as critical habitat, including 413,702 hectares of federal land. Itincludes three units encompassing 24 subunits. Subunit 2E consists of approximately 33,666 hectares. According to the Fish and Wildlife Service, "[t]his subunit is considered to be within the geographical area occupied by the species at the time of listing, and it contains the physical or biological features essential to the conservation of the species, is currently functional habitat…