Water

More Wonkfests: EPA on Forest Roads

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Ah.. it doesn’t get better than this. Here’s a link to the Supreme Court oral arguments. Note for the People’s Database: seems to me like all oral arguments should be posted for any courts.

On December 5, two days after the Supreme Court arguments that John described, the University of Minnesota Department of Forest Resources hosted a seminar called “Will Forestry Become a Regulated Activity Under the Clean Water Act? The speakers were David Tenney, John Barnwell, and Lisa Thornvig. It’s interesting how the issues in Oregon flow (so to speak) all over the country. Here’s a link to the webcast.

Gotta love these webcasts. Thank you University of Minnesota for posting! and thanks to SAF for the link. We ragtag hobbyist wonks appreciate it greatly!

Prevent legal quagmire for timber industry: Oregonian Editorial

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Yes, save lots of litigation bucks! I agree with the Oregonian Editorial Board here.
Christmas always reminds me of Dickens, and this case could otherwise grow into one reminiscent of the infamous Jarndyce v. Jarndyce. There are many other, potentially more productive, public works and employment programs we could invest in..

The Supreme Court may now punt rather than ruling on the merits in the case, Tenny says. Environmental groups will respond by challenging the EPA’s new rule in court, and the legal wrangling, once again, will go on and on.

Enter Congress. If the Supreme Court does, in fact, give the case the brush-off, Congress should act quickly on very targeted legislation introduced in both the House and Senate. The companion bills enjoy bipartisan support, including that of Rep. Greg Walden, R-Ore., Rep. Kurt Schrader, D-Ore., and Sen. Ron Wyden, D-Ore. Their passage would simply provide firm legal footing for long-standing EPA policy governing logging runoff.

This legislation barely moves the needle on the controversy meter, and it would provide great relief to an important industry in Oregon and many other states. It deserves prompt passage..

The idea of surgical litigation to resolve issues that cause protracted litigation otherwise is a useful one to have in the CREATE toolkit. Speaking of transparency, here is a link to the oral arguments. And a quote suggesting the alternative to legislation is protracted litigation (thanks to Steve Wilent for finding this):

MR. FISHER [for respondents = NEDC]:

But if I might just explain to this Court, I think it will help the conversation if I explain exactly what our case looks like going forward, because we have and will maintain a claim for forward-looking relief for two reasons. One is, for the reason that was mentioned a couple of times in the beginning part of the argument, because we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself, which is to say the language that requires EPA to regulate –

JUSTICE SOTOMAYOR: Is this a –

MR. FISHER: — all discharges associated with industrial activity.

Observations on Some Current Cases, and Introducing REAL

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I think we really need to start a group toward reforming environmental conflict resolution as currently carried out through the court system.

We need an acronym.. for the time being, I will use REAL for “Reforming and Enhancing Appeals and Litigation” as it pertains to environment and natural resource disputes, particularly in public lands. Other acronym suggestions are welcome. You all have given me ideas, plus others outside this blog have, for ideas and actions that we may or may not agree to support in terms of:

1) Increasing transparency, public participation, and accountability in the resolution of disagreements involving public lands,

2) Through either direct action, or influencing legislation or Administration policy.

So I will be rounding up some of those ideas in the next few weeks.

I ran across these three pieces that help make my case for action:

1. (Litigation does not addressing the real issue). This story is “Feds file litigation to weaken ranchers’ claim” here. Where’s the best available, or any, “science” for that matter? Nowhere to be seen. It seems to me like conflict resolution folks could have been brought in on this to mediate the real issues, which seem to be 18% reduction, and not the Constitution. Likely to be more cost-effective to the taxpayer and more effective. But there could be history here that I’m not aware of, so those who know more, please speak up.

2. (Litigation does not address the real issue) Thanks to Terry Seyden for this one. This was in Forbes. This is a big enough deal that many folks are involved, including timber industry, and SAF (needed to be transparent about that). The same arguments could be made that this author makes,about other tinier projects, only without the broad base of (financial and other forms of) support.

On December 3, the U.S. Supreme Court will consider who is best suited to set national environmental policy – the experienced scientists and regulators at the Environmental Protection Agency or activist trial lawyers.

..

and

The former dean of the Yale School of Forestry and Environmental Studies, John Gordon, worries that, “Injecting permit requirements into this [BMP] process will only make the ongoing upgrade of our [environmental protection] methods slower and more expensive, diverting resources from reducing sediment to the legal machinery of permit review and litigation.” “In this case, environmental activists are not on the side of the environment,” he concluded. The EPA agrees; regulators have insisted for decades that permitting was not designed for—and does not work for—forest road runoff even as state forest road BMPs are widely acknowledged to have proven effective and efficient.

When the Supreme Court convenes on December 3rd, the critical question will be whether 35 years of effective regulation from EPA should be surrendered to America’s lawsuit industry.

To be fair, let’s take a look at this fellow’s background here. He is not one of our experienced folks in this area.. still he doesn’t claim that his opinions are a “scientific report.”

3. (Understanding the intricacies of the legal processes is not always easy, plus not addressing the real issue, plus not clear where the scientific information would lead.) Here is a link.

But Monday, U.S. District Court Judge John L. Kane rejected the settlement. At issue is a provision saying if there is a dispute over the implementation of the document, neither side can be found in contempt of court. The judge ruled that provision exceeds the authority of the two sides and could lead to them not reporting violations of the court order.

Tim Ream, attorney for the environmental group, called it a “very esoteric point” and said negotiations continue on reworking the settlement.

Dirt bike groups, who have funded and carried out maintenance work on the trails for years, have blasted the lawsuit as unfairly singling out dirt bike riders from hikers, mountain bike riders and others they say also impact the creek.

“We are not satisfied with the process to date,” said Don Riggle, president of the Colorado Springs-based Trails Preservation Alliance. His is one of three groups representing motorized vehicle riders that have joined the lawsuit as intervenors.

He said he agreed to a settlement with the Center for Biological Diversity with the understanding the ban would be in place only for the winter months, until the trails could be realigned, but last week’s settlement differed “in principle.” The document includes no timetable for reopening.

Here’s my information question, if three groups are intervenors, do they get to sit in while the settlement is discussed? To an outsider, seems like they should. Could someone explain how that works? ‘Cause otherwise it looks like a pretty closed door to the public.

Forest to Faucet Partnership- Denver Water

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Thanks to Terry Seyden for this one…
Here’s the link.

By Jim Lochhead
and Dan Jirón
Guest Commentary

National Forest lands serve as the primary source of water that sustains cities and farmlands up and down the Front Range. This summer’s tragic wildfire season, fueled by heat and drought, once again demonstrated that catastrophic wildfires can wreak havoc on our watersheds and have devastating impact on life and property.

Fires impact water supply and water quality by increasing flows of sediment, debris and ash into streams and rivers, requiring emergency measures at treatment plants and millions of dollars to repair damage to habitat, reservoirs and facilities. Today, Colorado Springs and communities in the Fort Collins area are facing the immediate and long-term impacts from the Waldo Canyon and High Park Fires on their water supplies.

More than 10 years ago, the Buffalo Creek and Hayman fires brought to the forefront the need to work more closely together to tackle the impact of wildfires on Denver’s most critical water supply. We learned that our water infrastructure is more than pipes and dams. For Denver Water, our infrastructure encompasses more than 2 million acres of forested land in eight counties. Our investment in these watersheds is a long-term commitment to keeping them healthy decades from now.

We can’t prevent fire from occurring, but healthy forests can reduce the threat of catastrophic fire, like we experienced this year. Denver Water and the U.S. Forest Service have for decades worked side-by-side to care for the watersheds that provide water to Colorado citizens and Denver Water’s customers. Two years ago we forged a partnership — called “From Forests to Faucets” — to work in high-priority watersheds to accelerate forest health treatments that promote healthier, more resilient forests, reduce wildfire risks, restore burned areas and lessen erosion into reservoirs.

Last week, Denver Water and the U.S. Forest Service signed the third annual commitment of funds in support of this partnership. Together, we are focused on treating and restoring 38,000 acres of National Forest System lands in five priority watersheds including the Upper South Platte, South Platte headwaters, Colorado River headwaters, St. Vrain and Blue River. Since the From Forests to Faucets partnership began in 2010, we are currently treating nearly 17,000 acres.

In the Indian Creek drainage near the Rampart recreation area on the Pike National Forest, crews have treated more than 600 acres by removing ground fuels and thinning trees and reducing the threat and impacts of wildfire in the area. Near Dillon Reservoir, which is part of the Blue River Watershed on the White River National Forest, we’ve treated 600 acres, and 1,400 acres will be treated in 2013. Treatments include removing bark beetle-affected trees around the reservoir, while leaving the cut trees on the ground to support the next generation of forest.

The critical work done in these priority watersheds means improved water quality for Denver Water customers and millions of downstream water users, and healthier ecosystems, which benefit forest visitors and wildlife. While our current agreement focuses on reaching specific goals by 2015, we recognize that we’ll be working together for decades to come.

We are extremely proud of the work accomplished to date to protect our National Forest lands. The outcome of pulling our resources together, prioritizing work within critical watersheds, and putting people to work on the ground to improve water quality and quantity makes a real difference for Denver Water customers, forest visitors, and the ecosystem. We feel strongly that this partnership is a replicable example for future opportunities to approach critical watershed and forest restoration with partners that can only gain from what each can bring to the table.

Jim Lochhead is CEO and manager of Denver Water. Dan Jirón is a regional forester with the U.S. Forest Service, Rocky Mountain Region.

I wonder why this water partnerships like this are a New Mexico/Colorado phenomenon and not a California/Montana phenomenon? Maybe I just don’t know about them elsewhere? Maybe the lack of a forest industry means that these things can happen without the timber wars ghosts? Ideas?

Zion Cottonwoods

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During my recent trip to SW Utah, I was fascinated by the old and large cottonwoods in the canyon bottoms. While they do have good fall color, I was more mesmerized by the hypnotic bark patterns.


A close-up of the bark reveals such interesting patterns to something thought to be more random in nature. This old tree had fallen from last year’s big floods, a completely normal thing for Zion Canyon. It’s truly amazing that cottonwoods can resist so many flash floods over an 80-120 year lifespan. Of course, there could be “micro-evolution” at work here, in this specialized environment of Zion Canyon.

In these narrow slot canyons, only those trees with the strongest roots can withstand the debris torrents that reshape channels and move boulders, like this one lodged under the huge, water-altered cottonwood branch. To the right of this tree is a house-sized boulder. To the left, outside of view, is another giant boulder. Up the canyon is a giant, super-narrow slot canyon, which drains a substantial watershed of solid bedrock. What an awesome experience it would be to find a safe spot to watch a flash flood here.

To see my recent pictures from SW Utah, go here

www.facebook.com/LarryHarrellFotoware

 

The Tyranny of Nativehood, Species-in-the-Sierra Style

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This range map is from the California Nature Mapping Program http://naturemappingfoundation.org/natmap/ca/

Here’s the link and below are excerpts.

If beaver will perform a useful hydrological function in an era of coming drought, does it matter how “native” they are? Do they have to have been shown (by whom? how many?) to be in a drainage, a watershed, a mountain range? If Kokanee are not native, should they not be celebrated?

If the “ecosystem” needs all species that were there at some point in the past, and yet the different species like different conditions, and managing the conditions to make sure they are all provided for takes lots of money, and neither California nor the Federal government is rife with money..

I found this discussion fascinating, because, like the fire issue, within the discussion is an idea “nativeness in the past” that is said to determine today’s policy.

The articles have caught the attention of the California Department of Fish and Game, which is re-examining its beaver policies in the Sierra, said Matt Meshiry, an environmental scientist with the department.

“If they are a native component, then we need to examine land use and species management … in terms of maintaining and preserving the ecosystem,” Meshiry said.

Pister, the retired fisheries biologist, is skeptical, saying beaver have harmed golden trout – the California state fish and a native species – in the eastern Sierra.

“We found beaver dams prevent migration and genetic interchange between populations while silting in the best food-producing and spawning areas,” he said. “Trout would grow larger in beaver ponds, but at a biological price.”

And of course, population differentiation from separation of populations, and interchange or migration, are both important evolutionary processes.

But this year, beavers built a dam not far from the facility, threatening to flood it and a trail. The Sierra Wildlife Coalition urged the Forest Service not to disturb the dam, suggesting a piping system be installed to permit water to flow through the dam, preventing flooding and protecting beaver – or that the level of the pathway be raised.

On Sept. 26, Forest Service crews dismantled the dam instead. The beaver weren’t harmed but Guzzi fears for their future.

“They have to stockpile food for the winter because they don’t hibernate,” she said. “So this is taking away their food. And they could starve.”

“It’s a strange corner for the Forest Service to be backed into because it’s all artificial,” Guzzi added. “It’s a little ironic, to say the least.”

Heck, the Forest Service spokeswoman, acknowledged the subject is challenging.

“There are a lot of complex issues,” she said. “Are you dealing with two non-native species and balancing their needs? Are you balancing a native and a non-native? There has been quite a bit of conversation.”

She also said dismantling the dam was the right decision.

“Essentially, we were hoping we could discourage them (the beaver) from rebuilding in that location while allowing downstream dams to persist.”

“It’s one thing to suggest things. It’s another to be the entity that has to implement solutions,” Heck added. “We have to look at what the maintenance load would be (and) whether it’s actually going to work.”

Also up for discussion is the focus of the popular fall festival on a non-native species.

“It does take some thought about how to shift an event like that,” Heck said. “What would that new theme be? How are we going to talk about both the kokanee and native species?”

It’s strange that all these folks, most of whom contain large numbers of non-native genes, are having this discussion. Somehow it seems to have gotten into folks’ understanding that non-natives are undesirable. Some are, but we need to decide which ones, and agree on why they are undesirable, if so, what can we do about it, can we afford it, and will it work- not judge a species solely on its ancestry.

Indian Valley Meadow Restoration

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Indian Valley, part of the Amador Ranger District, Eldorado National Forest, is being restored as a high elevation meadow, after decades of misuse. Grazing has ceased but, its impacts still linger. In the past, willows were removed and water was channeled away, causing increased erosion of these shallow and fragile soils. The water table has been lowered and the meadow hasn’t been able to support the vegetation that it used to.

Concentrating runoff by channeling the water causes increased erosion, especially when we have rain on snow events. There were significant impacts from the winter of 1996. This project aims to get the water to spread out, linger, and re-charge the water-holding capacity of up to 500 acres.

A system of catchment ponds, compacted soil plugs, and native plant re-vegetation will cause snowmelt runoff to spread out and slow the erosive power of concentrated water. This project has a history of being de-funded and handed off but, all things came together when Coca Cola offered up some cash, which led to some additional matching funds and collaboration. The Ranger District had to jump through all the NEPA hoops, as surveys had to be completed for endangered willow flycatchers, frogs and toads. The one impact they could not remedy is a historic road, which travels across the meadow. Relocation was made impossible, due to archaeological sites. Removal or closure would be politically impossible.

The willows have made a great comeback, since grazing ended. However, you can clearly see that the foreground vegetation is quite sparse. Raising the water table a few feet will lead to meadow restoration. The numerous braided side channels would re-charge the water table. There appears to be one of the historic man-made channels in this picture.

Here is what appears to be one of the natural side channels, which no longer is supplied with water, due to lowered water table, erosion, and channeling of the water. This restoration project appears to be a win-win situation for everyone.

Here is a non-Forest Service link to the project:

http://www.americanrivers.org/newsroom/blog/lhunt-20120920-indian-valley-meadow-restoration.html

Water Quality, Abandoned Mine Cleanup and Liability: Help Wanted!

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Thanks to Terry Seyden for finding this.. I saw it in the Denver Post, I think, Sunday but didn’t get around to posting.

This is a serious environmental problem and perhaps “Something We Can All Agree On” as you can see, with an obvious solution. What I don’t get from this story, is “who could possibly be against it?” and “why on earth hasn’t the legislation passed?”. If anyone out there knows, please share…

Colorado mining authorities have dug through a mountainside and reopened the dark granite shaft of an abandoned mine that turned deadly – trying to find options for dealing with one of the West’s worst environmental problems.
The Pennsylvania Mine, perched above timberline, discharges an acidic orange stream moving 181 pounds per day of toxic metals into Peru Creek and the Snake River, which flow into Denver Water’s Dillon Reservoir.
The poisoning of the watershed has gone on for more than 60 years.
Yet state officials say the risk of lawsuits prevents cleanup of this mine and thousands of other abandoned mines that have impaired 1,300 miles of Colorado streams and, according to federal estimates, the headwaters of 40 percent of Western rivers.
Today’s digging reflects growing frustration. Colorado county governments recently resolved to lobby for congressional action as water quality and healthy mountain fisheries are increasingly important to the Western economy.
“The idea is to just get ourselves in there and see what the remedy might be,” said Bruce Stover, director of Colorado’s Office of Active and Inactive Mines, who was peering into the Penn Mine last week.
Orange slime – containing iron, cadmium, aluminum, mercury, zinc and lead – coats the walls of the mine 4 inches thick. The U.S. Forest Service and the Environmental Protection Agency paid for the use of heavy machinery to dig through 200 feet of collapsed mountainside to open the mine shaft.
Stover and contract workers are trying to unravel an underground spaghetti of side tunnels and fissures. If the main shaft were plugged, would toxic water back up inside the mine, where it could be neutralized? Or would the mine drain through other openings and spew toxic metals at multiple points across fragile tundra? That information could help determine how a cleanup could be done most efficiently.
But, for years, congressional leaders have refused to address the problem of legal liability at abandoned mines – despite repeated efforts by U.S. Sens. Michael Bennet and Mark Udall, both Colorado Democrats.
The EPA’s current interpretation of the Clean Water Act says “good Samaritans” and state governments embarking on projects to reduce the contamination of watersheds could be held liable for costs of full-scale cleanups costing millions of dollars a year to treat toxic water forever. This has prevented partial cleanups that, while not stopping all pollution, could improve water downstream.
“What we need in Colorado and across the country is federal legislation that enables the state and other parties to take smart and affordable steps at these sites,” said Loretta Pineda, state director of reclamation, mining and safety. “Right now, under the language of the Clean Water Act, we cannot take those steps without risking enormous financial liability.”
At the Penn Mine over the past year, state inspectors measured a boggling array of toxic metals discharged into Peru Creek. They counted 186 pounds of cadmium, 4,496 pounds of copper, 21,529 pounds of manganese, 21 pounds of lead and 39,896 pounds of zinc. These metals have left Peru Creek and much of the Snake River devoid of aquatic life.

This is what one person thought the reasons were: fear of environmentalist lawsuits.. and pushback by environmentalists.. could that possibly be true? And if so, what groups, and could they possibly be influenced?

From the Telluride Watch here:

But certain provisions in the federal Clean Water Act create major stumbling blocks to such efforts. The Clean Water Act likes big, perfect fixes – like permanent water treatment pants that cost millions to build and millions more annually to operate, and which convert toxic water into potable stuff that fish can cruise around in.

So-called Good Samaritans have had to walk away from more modest mine cleanup projects for fear that if they don’t bring the discharge water all the way up to CWA standards, they may be sued by a third-party citizen or even another environmental group.

Pat Willits, the executive director of the Ridgway-based Trust for Land Restoration, which helps communities deal with a myriad of issues related to abandoned mining, explains the liability problem like this: “Good Samaritans are spooked by the ‘citizen suit’ provision of the Clean Water Act, which says that if someone suspects a violation of the Clean Water Act, a citizen may begin a legal action and if successful, the defending party will have to pay all of the legal expenses of the citizen’s group. If they are unsuccessful, the defendant does not have recourse to countersue.”[…]

Two decades’ worth of efforts to shield would-be Good Samaritans legislatively by creating a new provision in the Clean Water Act (including, most recently, U.S. Senator Mark Udall’s Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009), have floundered in Congress, due to fears from environmentalists about opening up the Clean Water Act, even for such benign and altruistic purposes as protecting Good Samaritans…

Additional note: the GMUG National Forest was recognized for its leadership in the Abandoned Mines program at the 2012 Regional Forester’s Honor Awards.

Here’s the write-up.

For demonstrated sustained superior eff ort or action.
GMUG Abandoned Mines Lands Program
Over the last fi ve years the Grand Mesa, Uncompahgre and Gunnison National Forests (GMUG) have successfully obtained funding for Environmental Compliance and Protection (ECAP) and Abandoned Mine
Lands (AML) Programs. The Forest is recognized as highly effective, knowledgeable and accomplished
in project work and has leveraged funding through partnerships and potentially responsible parties to
have a implemented a 5-year mine reclamation/restoration program of over $8.4 million dollars. As a
program leader in the Region, these accomplishments and the expertise aff orded on the Forest are worthy of Regional Forester special recognition.

Here’s the link to the Regional Forester Honor Awards. If you run into folks from the GMUG, you might want to say “thank you” or “we heard about the great work you’re doing.”

Question: FERC relicensing, scope of analysis

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From Dick Boyd:

What is the understanding of forest managers regarding relicensing of hydroelectric generators?

My observation is that the geographic area of the project does not extend far enough from the water to establish responsibility.

There is a need for fuels management, including reduction, to prevent the type fire that results in siltation of the reservoir. Most licenses seem to be predicated on tens of feet of elevation or tens of yards from the high water mark.

Seldom is the hydroplant tasked to pay for services rendered in fuels management.

This question was prompted by my observation at a public meeting that the map suggested the licensing would address the entire geographic area of the watershed. Someone else asked a question about the map. The response was that the project geographic area was limited to a small perimeter around the reservoir. Then the discusion went on about boat ramps and recreation. Neither fire fighting or fuels reduction was mentioned.

Dick, my only involvement in this topic was whether the FS should do separate NEPA on its terms and conditions, or their should be one NEPA document associated with the decision and terms and conditions.
Also in the case of non-FERC dams in Colorado, the water provider pays for part of fuels treatment to protect from sedimentation voluntarily.

Do others know more about this?