Thursday, October 23, 2014

On the Clean Water Act's Birthday, I Remember the King William Reservoir

One of my favorite places on earth - the Mattaponi River in eastern Virginia.
The US EPA gave someone permission to turn it into a 1,500 acre lake.
Photo:  Alliance for the Chesapeake Bay

Habitat partners everywhere are celebrating the Clean Water Act's birthday publicly.  It's a great thing, and CWA is a great law.   Its application, though, has been a bit inconsistent over the years, a point which is not lost on the apparent majority of conservationists and a large minority of Democrats and liberals regarding the pending New Rule for Waters of the US.   Some of the most environmentally liberal local jurisdictions in the country, in fact, are publicly opposing the pending Rule.

Me?  I  wish it hadn't come to this.  I wish the Migratory Bird Rule was still intact - that the Missouri Coteau had federal protection from draining and from the farming of virgin prairie.  But that's all done now.  EPA failed to negotiate a settlement with a Chicago area sewer authority, and the federal agency was taken behind the woodshed when the case arrived at the US Supreme Court - the Court never even bothered to tackle constitutionality, finding significant statutory flaw in EPA's policy.

KW Reservoir site, from
Virginia Places
But I remember the King William Reservoir.  In the headwaters of the Mattaponi River, a sacred river on which I've paddled and fish most of my life, lie a great many things.  Last known populations of several endangered species.  Pre-Columbian sacred Native American burial grounds.  Current Mattaponi Tribal lands.   And the most lush and productive tidal freshwater beds I have seen in 40 years on this earth.

In those places, many years ago, the City of Newport News proposed to flood - up to 70 feet deep - over 600 acres, then 400 acres, of this special river.   It would have been the single largest loss of wetlands and streams ever permitted by the US EPA.   And the US Army Corps of Engineers happily granted permits for the project, without any objection from EPA (an agency that currently threatens to veto Corps permits for things as trivial as voluntary stream restoration projects).

Unfortunately for the EPA, a local group of stinky hippies called the "Friends of the Mattaponi" joined into a lawsuit with the Mattaponi tribe under the moniker of "Alliance to Save the Mattaponi", and in fact, a federal judge found that the King William Reservoir federal permits were  issued based on "arbitrary and capricious"standards - aka an "abuse of discretion." Specifically, the judge found that the EPA did not exert enough material interest or input in the project to warrant their lack of intervention.  And why would they intervene....it was just the largest destruction of wetlands ever permitted by the Clean Water Act?! No biggie.  Part of the federal judge's logic was obviously that EPA had vetoed permits for other less destructive reservoir projects in the adjacent county to the south.  Ouch.

So, when the judge's decision came down, clearly the EPA realized the error of its ways, right? No! In fact, they appealed the judge's decision to the federal circuit court!!!!!  EPA felt so strongly that they should be able to allow the largest single destruction of wetlands in CWA history that they appealed it! When asked by reporters about EPA's support of the massively damaging project, their project manager Randy Pomponio said the nearly 1,600 acre bathtub was, "the direction we want these folks to go," when compared to a 1980s concept that was 50% larger.  You read that right, folks.  The largest permitted wetland destruction ever authorized under the Clean Water Act was "the direction (EPA) want(s) these folks to go."   

That's right - the same agency currently begging for a Presidential Rule on expanding its legal authority wanted to fight all the way to the Supreme Court - again (they're currently 2 of 9 for CWA cases, as I mentioned in my last post) - for their right to do whatever they want with whatever water they want.    Luckily and unceremoniously, AG Eric Holder saw to it that EPA's appeal was quietly withdrawn just a few weeks later.   

Until that last sentence, you were probably thinking that this case was in the 1970s, or early 1980s.  But that "Eric Holder" thing....yeah....this federal court decision happened in 2009.

The same federal agency who has never been able to balance the books on the loss of federal wetlands and streams, the same federal agency who is currently begging Congress and the public to approve a massive increase (they tell us conservationists) in federal waters jurisdiction...yeah...those same folks.

In fact, a recent blog article by EPA's Randy Pomponio (the same guy in charge of EPA's work on King William Reservoir just 5 years ago) discusses how badly the New Rule is needed:

The proposed rule ..... is designed to clear the confusion and provide a more definitive explanation.
This is critical because the health of our larger water bodies – our rivers, lakes, bays and coastal waters depends on the network of streams and wetlands where they begin.  

Well, I'd argue that the health of our larger water bodies is also dependent upon EPA not letting people flood them with 70 vertical feet of water, behind a huge dam. Ironically, EPA's New Rule for Waters of the US won't stop them from going along with another project of this type in another river (or, you  know, allowing coal companies to fill in mountain streams with toxic fill, or letting natural gas companies pump glycols into our groundwater...but I digress). The Clean Water Act didn't deter EPA, in fact, from allowing this behemoth of a project to attempt to destroy this beautiful, sacred place.  If it were not for local activists, this special place on earth would be gone by now, slowly flooding up to its new depth (deep enough for the world's largest cargo ships to float in it!).  But for the mean time, it appears as if the sacred Mattaponi is safe, still teeming with waterfowl, with menhaden and herring, with descendents of the people who arrived here three thousand years ago, with children fishing in boats.  I hope it remains so for my son and for his children.

Sacred tribal lands of the Mattaponi.  Photo: Sacred Land Film Project



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oakleyses said...
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