Supreme Court Rules: The Forest Roads Are Free

The Supreme Court has has issued its opinion in the Forest Roads case (Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347)) which has been chronicled in this Blog here and here.  Succinctly, it appears that the Court did not consider the EPA's position at oral argument that the case was moot due to EPA's re-classification prior to the oral argument.  Rather, the Court went to the heart of the matter. Primarily, the Court clarified that,

The present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule.

Then, in describing EPA's interpretation, the Court specifically stated that,

It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’. The EPA’s interpretation is  a permissible one. Taken together, the regulation’s references to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities associated sites, as well as other relatively fixed facilities.   

The Court went on to explain that,

In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6).  

In a nutshell, the opinion is beneficial to forest road owners, as no Clean Water Act permit is required due to stormwater runoff, and there might be more citizen-suit environmental litigation under the Clean Water Act as a result.  It is also likely that environmental groups will take the position that regulations are ambiguous and should be interpreted in different way that implicates liability for landowners. While the issue of stormwater runnoff has not been settled, we at least have some insight into the Supreme Court's view of EPA's interpretation and the Silvicultural Rule.

No Clean Water Act permit is needed for forest roads in the Western U.S.

Hungry Like the Wolf

After recently spending a week in the Idaho wilderness during Winter, I obtained additional appreciation for the North American Rocky Mountains.  In fact, one morning during a snowshoe hike up towards the Seven Devils in the Nez Perce National Forest, we followed the snow tracks of a group of wolves, saw evidence of a wolf predation, and eventually encountered a howling individual.  This encounter was particularly exciting because wolves had become extremely rare (and by some accounts extinct) in Idaho in the mid-20th Century.  While it was wonderful to see wolves thriving in a native-wolf environment, there exists a significant controversy over the reintroduction of wolves into the Idaho wilderness.

Looking up the a slope in the Nez Perce National Forest towards a pack of Idaho Wolves

Technically, all wolves are wild species of Canis lupus; however, there are many recognized (and some partially recognized) subspecies of Canis lupus.  There exists a debate among scientists as to whether the type of wolves re-introduced into Idaho are different (and to what degree) from their native cousins   Some scientists claim that newly-introduced wolves (often referred to as: Mackenzie Valley wolves Canis lupus occidentalis & Manitoba wolves Canis lupus griseoalbus) are a different subspecies of the wolves originally in many parts of Idaho, Wyoming, and Montana; said to be Rocky Mountain wolves (Northern, Canis lupus irremotus & Southern, Canis lupus youngi).  According to some records, when wolves were native to Idaho, the wolves averaged approximately between 70-135 pounds.  The types of wolves re-introduced into Idaho (which may or may not be a different subspecies than the two species which use to roam the area) are commonly found between 90-160 pounds.  While all of these wolves are indeed Canis lupus, many argue that the newly-introduced wolves should not exist in Idaho where their smaller "Rocky Mountain" cousins formerly roamed.  The people against this controversial re-introduction argue that the "different subspecies" poses a much greater threat to pray species and livestock than the "native subspecies" ever did.

Unfortunately, the extinction of wolves from Idaho (whether of a different subspecies or not) is directly attributable to human interaction.  And there exists no method for humans to resurrect the native Idaho wilderness environment.  That said, mountain lions, lynx, coyotes, bears, and humans (the only other predator species in this environment) simply cannot keep the native Idaho pray species at bay (in addition to the non-native white-tailed deer, Odocoileus viginianus).  The important point here is that humans caused the irradiation of the wolves from this region, and while there's no way to put the native environment back, wolves did indeed exist in this ecosystem.  While a different type of species introduced into an ecosystem is generally a horrible idea, I have yet to see a study which explains (other than speculation) how these re-introduced wolves are more harmful than the native wolf population.  Further, the argument that the new Idaho wolves have thrived beyond expectation isn't necessary proof that introduction was a mistake.  The introduction of a new predator species will immediately cause the predictor/prey balance to be altered, and equilibrium may take decades to occur.  Thus, while the people arguing against this reintroduction are completely correct -- the reintroduction cannot preserve the wilderness or bring the wildness back to its pre-wolf-extinction state -- it is certainly nice to see wild Canis lupis back in Idaho.

River Fight Update!

Last year, this Blog outlined a new fight about who owns certain sections along and under the Potomac River.  This latest fight addressed land near Harpers Ferry, West Virginia and whether an entity that owned land adjacent to the Potomac River in Maryland could control paddlers on mid-river rocks and on the Virginia shore.

Despite strong legal precedent (e.g., Virginia v. Maryland, 540 U.S. 56, 60 (2003); Marylandv. West Virginia, 217 U.S. 1 (1910)), the Plaintiff in the matter, Potomac Shores Inc., argued that their ownership of the Potomac River bottom and Maryland shore allowed them control over such rocks and the opposite shore.  Their argument stemmed from the fact that they did indeed have written title to the river bottom (from the mid 19th Century) and Ohio v. Kentucky, 444 U.S. 335 (1980), which had ruled that state boundaries using the Ohio River were permanently set by the Ohio River's location at the time of the state's creation.

However, as expected, Judge Long of the Washington County Circuit Court of Maryland recently ruled that Potomac Shores' matter should be dismissed because the case could only be brought in Virginia (as the trespass alleged by Potomac Shores occurred in Virginia).  Judge Long's ruling explained that (1) Ohio v. Kentucky is a different situation than the Potomac River (where there has existed clear precedent for over a century for clear boundaries of the states adjacent to the Potomac River) and (2) private Potomac River bottom ownership was disallowed (for future and current ownership) in prior Supreme Court precedent and agreement of the states.

Thus, while Potomac Shores has filed a Motion for Reconsideration of Judge Long's ruling (and still has the opportunity to appeal), it appears that this latest Maryland against Virginia river ownership fight is has ended peacefully

Paddlers can rejoice as the Harpers Ferry whitewater takeout is not illegal.

Standing on Water

In environmental litigation, the ability of a citizen or organization to sue an entity or government to correct an environmental problem (i.e., the "standing" to sue) has always been a significant issue.  Thus, most federal and state environmental statutes incorporate "citizen suit" provisions to allow citizens who are affected by a problem (whether boating in the polluted water source or living on the polluted soil) to bring a lawsuit against the polluter or governmental agency enforcing the pollution problem.

Recently, in Montgomery County, Maryland the issue of standing has come up again in a suit by the nonprofits Potomac Riverkeeper and Anacostia Riverkeeper regarding a municipal storm system permit issued to the County by the Maryland Department of Environment.  Municipal storm systems are set procedures and conditions that are put in place by a local government to address where and how excessive water is released/pumped into local waterways upon periods of intense precipitation and/or flooding.  For Montgomery County, its excessive stormwater flows into the Potomac River which is located along the County’s Southwestern Border.

In 2010, Judge Rubin in the Montgomery County Circuit Court ruled that standing of the two organizations was lacking under a prior 2009 Standing Standard because (according to Judge Rubin) the fact that one of the organizations' members was an "avid paddler" in the effected waterway was not enough to accomplish standing.  

Recently, however, the Maryland Court of Special Appeals ruled that because the matter came before the Montgomery County Circuit Court in 2010, the newer 2010 Standing Standard (which would allow an "avid paddler" to have standing) should have been used.  Consequently, the Riverkeepers' lawsuit is alive and well.  And the Maryland Department of Environment will have to explain why it issued the permit to Montgomery County and whether the Potomac River (directly adjacent to Montgomery County) will be improperly effected by the permit at issue.

The Potomac River (at S-Turn Rapid below Great Falls) at almost Flood Level
(conditions that may have triggered stormwater outflow from Montgomery County)

More Dam Politics

The harm that dams cause to river ecosystems has been documented for decades.  As described eloquently by William Lowry in Dam Politics: Restoring America's Rivers, dams on free-flowing American rivers have caused poor water quality, altered flows, and diminished natural habitat.  Fortunately, there has been a strong and successful movement recently to remove now-defunct dams from waterways.  Success stories include the Elwha River Restoration and the Condit Dam Removal Project.

Now, it appears that a significant dam on the Potomac River is the fortunate target of a removal project as well.  In the mid-1800s a dam was built next to Cumberland, Maryland on the Potomac River with the purpose to impound water for use of the city and to fill the Chesapeake & Ohio Canal.  However, currently the Cumberland Dam serves no purpose.  The dam impedes river-life from travel, builds up harmful sediment behind the damn, and is a danger to humans in watercraft navigation of the river.

The Cumberland Dam -- a potential target for dam removal

Recently, with the support of American Rivers, the United States Fish and Wildlife Service, has donated a significant sum ($40,000) for the sole purpose of testing to determine methods for and dangers of removing the Cumberland Dam.   However, unfortunately, removal of the dam remains in limbo.  First, all governments (the United States, State of Maryland, State of West Virginia, City of Cumberland, MD, and City of Ridgeley, WV) currently refuse to claim ownership of the Cumberland Dam.   Second, due to a huge build-up of sediment behind the bridge, no entity (or politician) want to support removal -- as the sediment dispersal could be harmful downstream of the bridge upon removal.

Plainly, these governments need to work together to remove the Cumberland Dam -- even if ownership of the dam is in question.  Clearly, there could be significant environmental harm for immediate dispersal of the sediment; however, much like has been done in countless dam removal project previously (See Elwha River Restoration and Condit Dam Removal Project), there are well-recognized methods of addressing extreme sediment dispersal and flow restoration.  I am aware of no dam removal project in which the river ecosystem was worse years after a dam removal.  In fact, in many cases, the river ecosystem has recovered much sooner (and better) than expected.  In fact, the dam removal could even include recreational benefits such as a natural-river whitewater course.  Hopefully, these Federal, State, and Local governments will realize that removal of the Cumberland Dam is a clear benefit for all communities (as well as all local ecosystems), and everyone will support its removal.

Stormwater & Clean Water: Another Round

Stormwater regulation under the Clean Water Act has been one of the most significant Clean Water Act disputes over the past few years.  In fact, the Supreme Court decided to hear two cases addressing the degree to which the Clean Water Act can regulate stormwater runoff. Then, mere days before the oral argument of those Supreme Court cases, the U.S. Environmental Protection Agency ("EPA") reversed their administrative decision to regulate the disputed runoff.

However, this stormwater regulation dispute has recently traveled to the Potomac River. Accotink Creek (located in Fairfax County, Virginia) is a significant lower tributary of the Potomac River and has been labeled an "impaired" river by the EPA for water-quality issues.  As an impaired river, Accotink Creek has an established TMDL under the Clean Water Act and is regulated by the EPA.  Last year, Fairfax County and the Virginia Department of Transportation sued the EPA in an attempt to force the EPA to reverse its decision to regulate stormwater runoff from Fairfax County into Accotink Creek alleging that the EPA is violating the Clean Water Act.  Last week, U.S. Eastern District of Virginia Judge Liam O'Grady ruled that the EPA cannot regulate the flow of stormwater runoff (deemed "nonpollutants") into bodies of water.  Judge O'Grady specifically stated that EPA "[c]laiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of EPA's TMDL authority."  While this stormwater regulation dispute is certainly not over with this District Court decision, it appears that based on (1) EPA's decision regarding reversing its regulation and (2) this Accotink Creek decision, Congress may need to amend the Clean Water Act for stormwater runoff to be regulated by the Federal government.

A recent clean-up crew on Accotink Creek  (courtesy of  Friends of Accotink Creek)

Hydraulic Fracturing: Study Progress

Hydraulic fracturing became one of the strongest environmental buzzwords of 2012.  In countless clean water rallies, court cases, and congressional hearings, hydraulic fracturing was placed front and center as either (1) a horrible detriment to our environmental well-being or (2) an economical and efficient method to harness natural gas/petroleum from the earth. Wikiepdia describes the process as merely: “the propagation of fractures in a rock layer, by a pressurized fluid.”  Plainly, hydraulic fracturing or “fracing” breaks rock layers and then injects some type of fluid (sometimes toxic) into the fracture to assist in the extraction of the sought-after natural resource. 

Currently, the U.S. Environmental Protection Agency (“EPA”) is in the process of an ongoing national study to more clearly understand all impacts of this process on the Unites States’ drinking water resources.  This study is expected to be completed by 2014.  That said, a few weeks ago, the EPA released a status update of the study.  Currently, there are no conclusions drawn within this update, but rather it just outlines the basics of the eventual 2014 Final Study.  Until then (and probably still after), hydraulic fracturing will continue to be at the center of environmental controversy due to its wide.spread use and potential detrimental effects on water tables, ground water, rock layers, and drinking water.

Diagram of hydraulic fracturing