Archive for October, 2010

Although things have been quiet recently on the Save Cougar Bay battlefront, new shots were fired yesterday by the Cougar Bay Osprey Protective Association, which filed a lawsuit challenging the Idaho Department of Lands’ rejection of their application to protect the pilings and booms in Cougar Bay. Having been rejected twice by the Department, without so much as a hearing, the Osprey Association filed a “Petition for Writ of Mandate” to have the Court order that IDL accept the application and hold a hearing.

A most unlikely pair of attorneys — Scott Reed and John Magnuson, who are usually on the opposite sides of land use and waterways cases — filed the case late Thursday afternoon on behalf of the Osprey Association.

The petition describes the attempts by the Osprey Association to bring their application for a hearing only to be arbitrarily and somewhat absurdly rejected by IDL. The petition says:

The basis for the rejection of the permit application by respondents and their attorney was the determination that only a government agency is empowered to improve waterways for wildlife habitat and other non recreational uses by members of the public. This interpretation would prohibit other non-profit organizations such as the Idaho Nature Conservency, Ducks Unlimited and the Coeur d’Alene Lakeshore Property Owners Association from seeking to improve waterways for navigational, wildlife habitat or other recreational uses …

The afore-described duties [to accept the application and hold a hearing] incumbent upon [IDL] constitute plain official duties and require no exercise of discretion. [IDL] had no legal right to reject the non-commercial encroachment permit application

The petition points out that “Cougar Bay represents only 1.3 percent (417 surface acres) of the lake where kayaks and smaller water craft can safely enjoy the quiet scenery without risk of being swamped or overrun by larger faster water craft.”

The petition goes into some detail concerning the benefits to recreation and habitat inherent in protecting the pilings and booms. And the petition notes that a great deal of public, private, and non-profit investment has permanently preserved much of the shoreline. The application, the petition says, is consistent with Idaho’s Public Trust Doctrine.

It will be interesting to see what this legal wrinkle does to the recent agreement between Kootenai County and IDL over piling removal.

We remain convinced that Cougar Bay is an extraordinary place, deserving of much more protection than currently exists. The pilings and booms are a remarkable historic and wildlife and recreational resource, but they are, perhaps, the last line of defense. Good luck to the Osprey Association and its lawyers. And stay tuned.


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We have obtained a copy of a cleanup counter-proposal for the upper Coeur d’Alene basin from Hecla Mining, and not surprisingly, the mining company proposes a much shorter, much cheaper, much less comprehensive, cleanup. We’re still weeding through their complicated 378-page, 10-year proposal, but based on a quick skim, we’re skeptical that their plan will meet cleanup standards in our lifetime. Or anyone’s lifetime.

As much as we are loathe to acknowledge it, the cleanup in the upper basin is still a long way from completion.  We’re not exactly happy that the EPA proposal calls for 50 to 90 years of waste cleanup and water treatment for the upper basin.  Unfortunately though, it’s probably a fair assessment of what it takes at current funding levels to clean up the Silver Valley once and for all. Hecla’s proposal — which plans only for the next 10 years and puts off major water treatment efforts – almost guarantees another lengthy EPA administrative process ten years from now.

Instead, we should just agree to get on with it. We should commit to cleaning up the Coeur d’Alene basin — completely, efficiently, to scientific-based standards, and according to the law. The mining industry’s special-interest shortcuts to the cleanup will only delay the restoration of the basin.

Your comments to EPA will help counter the mining industry delay tactics. Our friends at Idaho Conservation League have set up an easy way to send an email to EPA to support the Coeur d’Alene cleanup. Take a couple of minutes to tell EPA that you prefer a comprehensive cleanup over a half-baked one, that you prefer to finish the job rather than take half-measures with no end in sight, and that restoration of the Coeur d’Alene ecosystem is important to you, your family, and to the health of the region.

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Kootenai Environmental Alliance provided comments, again –and hopefully for the last time — on the long-awaited draft comprehensive plan revision for Kootenai County.  In the works for four or five years at this point, the draft could gain final approval by the County Commissioners next month.

Candidates Jai Nelson and Dan Green at the comp plan hearing, perhaps discussing how they would un-screw it up. Photo by KEA BlackberryCam

The hearing was nowhere near as lengthy, or heated, as previous hearings on the plan. Commissioners Tondee and Currie were in attendance, but Commissioner Piazza, reportedly hunting, was not. After about two hours of lukewarm testimony, the Commissioners closed the hearing, but put off any decision until a regularly scheduled meeting November 18th.

The strongest opposition came from the municipalities on the prairie who were critical of the plan’s handling of regions nearest the city limits. Post Falls Mayor Clay Larkin and Hayden County planning official Lisa Key represented the cities’ concerns that the plan was confusing, somewhat contradictory, and not conducive to orderly city expansion. County Commissioner Todd Tondee questioned the testimony, however, noting that the area reserved by the cities for city expansion was significantly too large, and that the county needed to assert control over these areas where it is still primarily responsible for land use decisions.

Post Falls Mayor Clay Larkin, testifying. Photo by KEA BlackberryCam

Many of the comments from citizens concentrated on the need to restore explicit development densities to the plan. Many commenters suggested that without the numeric densities, the plan is an insufficient guide for the drafting of zoning ordinances and for decision-making regarding future development proposals.

County Commissioner candidates Jai Nelson and Dan Green were in attendance taking careful notes. But notable in its absence was testimony in support, or opposition, from the business and development community. The so-called “Citizens for Balance,” were nowhere to be found.  Also not testifying were the Chamber of Commerce, the Association of Realtors, and the North Idaho Building and Contractors Association, all of which testified at prior hearings.

Perhaps nobody is expecting substantial changes from the same three commissioners who have already spent a year editing the plan. Unless these three commissioners duck this decision once and for all, this could very well have been the last comp plan hearing for a very long time. We should be so lucky.

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We got word over the weekend that the Spokane Riverkeeper is intervening in the pending TMDL lawsuit brought by Idaho polluter-plaintiffs Post Falls, Coeur d’Alene, and the Hayden Area Regional Sewer Board.  Recall that the Idaho dischargers filed a complaint in federal district court challenging the dissolved oxygen total maximum daily load (TMDL) issued for the Spokane River.

The litigation, which has cost North Idaho ratepayers and taxpayers more than $800,000 in legal and consulting fees, mostly asks that North Idaho dischargers be subject to the same standards as Washington’s.  This is arguably the case already. But regardless of the outcome, the Idaho plaintiffs will still need to install the very same pollution control equipment.  Notably, the Idaho dischargers are also participating in discussions of pollution trading — to be premised on the very TMDL they are challenging in Court.

We hear that settlement discussions are scheduled between EPA and the Idaho plaintiffs, and the many other lawyers which are necessarily now involved. The formal intervention will allow the Riverkeeper to participate in the settlement discussions that may – or may not – allow the Idaho dischargers to end their quixotic quest to modify the TMDL to their liking. Then, hopefully, we can get on with the cleanup of the river.


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It is, officially, National Lead Poisoning Prevention Week. It’s an annual coordinated concentration of education and awareness regarding lead poisoning, which is recognized by the CDC as the number one environmental health threat to children in the U.S. In most parts of the country, the focus is on deteriorating lead-based paint, which was widely used in residential housing prior to being banned in 1978.

However, in our region, we have another exposure pathway for lead poisoning — the legacy of mine waste that pollutes shorelines and waterways throughout the Coeur d’Alene basin. Because of lead and other heavy metals, an EPA cleanup has been ongoing in the Basin for a couple of decades, and a controversial proposal would have the cleanup continue in the upper basin for the next 50 to 90 years.

At hearings and public meetings on the proposed EPA cleanup plan, some residents question the need for the cleanup because the perception that there aren’t any remaining health issues in the Silver Valley.  Unfortunately, while gains have been made, threats to public health in the valley do indeed remain.  Sampling shows that contamination from heavy metals is widespread and diffuse throughout the Silver Valley, with contamination along nearly every drainage.  The Silver Valley contamination contains numerous toxic metals, most notably lead, that exceed human health criteria.  Human exposure to lead mainly comes through contact or ingestion of surface waters, inhaling dust, ingesting dust or soil.

Furthermore, while previous cleanup efforts have improved the water quality of the surface waters in the Silver Valley many stretches of those waters are still seriously impaired by heavy metals.  As EPA notes in its proposal, “[t]he risks are neither hypothetical nor potential future risks—the risks continue to exist today.”   The same is true of groundwater, which “is severely affected and contributes to surface water contamination.”

Lead poisoning is particularly insidious because the effects of lead poisoning can be subtle and indistinguishable from other common ailments.  Early symptoms include: persistent fatigue, irritability, loss of appetite, stomach discomfort/constipation, reduced attention span, and insomnia.  Prolonged or chronic exposure in adults can result in poor muscle circulation, nerve damage, increased blood pressure, and reproduced sperm count. Pregnant women are particularly susceptible to lead poisoning as it can affect fetal development (even at very low exposure levels).

Children are the most susceptible to lead poisoning for a number of reasons: children are exposed to relatively greater quantities of lead per unit of body mass; children are developing and growing; children are more likely to have nutritional deficiencies conducive to magnifying lead’s toxicological effects; and children are more likely to ingest soil, inhale dust particles, and consume water while recreating.  These are some of the reasons why lead poisoning in children remains the single most significant human health risk within the Superfund site.

For children, even very low levels of lead exposure can cause brain damage and/or mental retardation, behavioral problems, hyperactivity, and developmental delays.  Although the current lead blood level of concern for children is 10 ug/dL, recent studies indicate that there is no threshold level of safety and adverse effects of lead can occur at far lower levels.  Between 2000 and 2004, fifteen percent of children tested in the Silver Valley had blood lead levels higher than 10 ug/dL. More recent data show average levels of lead in Silver Valley children is near national averages. Although these recent averages sound promising, the number of children actually being tested is quite small. Given that there is really no safe level of lead in children, it remains clear that lead contamination levels in the Silver Valley needs to be reduced as much as practicable in order to avoid risks of cognitive and other developmental impairments in resident children.

Toxic exposure in children should not form the basis of a political debate; the debate should be scientific. And the scientific debate is long over.  Although lead and other heavy metals have been reduced, those substances still exist in the Silver Valley at levels that are hazardous to human health, particularly the health of children.  And they still flow through teh valley with each flood season. This is an ongoing problem that will not go away and will impact the Silver Valley for many years to come. So, while the EPA’s proposed cleanup plan might not be a perfect solution to the Valley’s mine waste problem, failing to act is not an option.  Postponing or avoiding the cleanup only serves to increase the potential for toxic exposures to the most vulnerable members of our communities — our children.

Jeff Briggs, our summer legal intern, contributed to this article.

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The fourth (count ’em!) draft of a new Kootenai County Comprehensive Plan is set for yet another hearing Tuesday at 5pm. However, with the same three commissioners who took a year to edit draft number three, now considering their own draft number four, we don’t expect them to make major changes, or take the time to do major re-writes. KEA will certainly attend the upcoming hearing, we will submit comments, and we will plead our case with the commissioners. But we will not be holding our breath.

From a substantive perspective, the VAST majority of the changes the commissioners made to draft three of the comp plan are inconsequential. Of the more significant changes: (1) there was a substantial re-write of the planned communities concept, most of which will not matter, (2) the commissioners attempted to address concerns raised by the mayors of the prairie municipalities (and shared by KEA), but didn’t do a great job of it, and (3) they took all the development densities out of the plan, which is a huge and unnecessary mistake. The density decisions can be made in the zoning code revision process, but it is substantially more difficult to do so.

File Photo

From a practical perspective, however, there will be at least one new commissioner after this upcoming election — to be held exactly one week after the hearing.  On the one hand, a new set of commissioners may be able to correct the mistakes in the comp plan made by the current combination of incumbent commissioners.  On the other hand, doing so will extend the incredibly long process even further. So the question becomes: Is the county better off if the plan is adopted now, finally, as is?  Or should the county make comp plan fixes with the incoming commissioners, even if it requires us to wait for them to take office, hold hearings, and go through yet another process of making comp plan changes?

Of course, the next, more important step in the county’s land use reform process — redrafting the zoning and development ordinances – is something that really needs to be done.  Our current, horribly out-of-date zoning code dates to the 1970s.

So our view on the practical question is increasingly that Kootenai County just needs to get to the next step of revising the zoning code, and we all just need to be done with the comp plan dithering. The tough decisions over development densities have been kicked down the road by this set of Commissioners. At this point, we’re prepared to go down the road with the new Commissioners, and get those decisions made once and for all in a new zoning code.

Overall, if it were getting letter grades, this fourth comp plan draft would get about a C-minus … which is to maybe to say it’s a pretty lousy grade, but it is enough to graduate.


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Leave it to Butch Otter to actually follow through on what should have been an empty threat. Today, Butch Otter decided to end Idaho’s role in wolf management. For the time being, at least. Unless it’s a purely political move, the directive is completely baffling, no matter which side of the debate you’re on.

Even the most vehement anti-wolf partisan needs to ask some serious questions: Now that Idaho is officially not dealing with the wolf problem, what leverage does it have in negotiating terms of future wolf management? What do Idaho ranchers do while the state officially ignores legitimate management needs? Wait for the federal agents to help? Will federal enforcement be less restrictive than the state’s?

Instead, the decision appears to be a cynical political move two weeks before an election. On twitter, at least, the official state announcement and the official Otter campaign announcement appeared to be simultaneous.

This isn’t leadership. It does nothing to resolve the impasse. And it will simply muddle the issue for the foreseeable future. Is this an appeal to the base? A need to close an “enthusiasm gap”? Or is it that the unthinking anti-federal-government vote must be bigger than we thought.

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The U.S. Fish and Wildlife Service has just issued the final designation of critical habitat for bull trout, a threatened species found throughout much of the northwest. The action designates nearly 19,000 miles of streams and 488,000 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana and Nevada.

Bull trout need clean cold water to thrive. Once plentiful, bull trout were found in more than 60% of the Columbia River basin, but are now occurring in less than half their historical range. They were originally listed as a threatened species in 1999.

Critical habitat designations (pdf) provide extra regulatory protection and management considerations for the species. Specific habitat areas are then prioritized for recover actions. Such protections do not affect ownership of land, and do not impose restrictions on non-federal lands (unless related to some action for which federal permits would be required). Overall, nearly 64 % of the designated habitat occurs on federal lands.

The Bush administration proposed habitat protections in 2005 which included less than half the habitat covered under this new designation. The Bush era rules were challenged in Court, and the agency requested a remand in 2009 to re-work the designation, based in part on flaws identified by the Interior Department’s Inspector General.

Bull trout are threatened by poor water quality, habitat degradation and fragmentation, blockage of migratory corridors, past fisheries management, climate change, and non-native invasive species like lake and brook trout.

Like a canary in a coal mine, the sensitive bull trout are an excellent indicator of water quality. Protecting bull trout habitat contributes not only to the species but to water quality throughout their range.

In Idaho, 8772 miles of stream and 170,000 acres of lakes or reservoirs are covered by the designation. In our basin, Coeur d’Alene Lake and the main stem of the Coeur d’Alene River are included. Also designated are the north fork of the Coeur d’Alene River, and the St. Joe River, and most of their tributaries. The Clark Fork and Kootenai Rivers, along with Lake Pend Oreille, Priest Lake, are on the critical habitat list in North Idaho.


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Again this week, candidates for public office in Idaho railed at the federal government over environmental regulation and federal programs, calling upon their familiar “state’s rights” arguments, often invoking the Constitution’s 10th Amendment.  In our region in particular, the Endangered Species Act, the Clean Water Act, and federal lands management are all challenged by much of Idaho’s political leadership as fundamentally trespassing on Idaho’s supposed sovereignty.  These arguments fuel the burgeoning Tea Party movement and form the underpinnings of the Idaho GOP platform.

Constitutionally, however, the arguments are nonsense.

The 10th Amendment states, in its entirety:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But the U.S. Supreme Court, from the very beginning and throughout the years, has held that the 10th Amendment, in its application, is essentially only a “truism.” The Constitution formulates the federal structure by delegating specific enumerated powers to the federal government, and then providing that the federal government may enact laws which are necessary and proper to carry them out. In particular, the commerce clause, the taxing and spending clause, and the necessary and proper clause, when taken together, are quite powerful.

The Supreme Court’s interpretation of the extent of federal power, particularly under the commerce clause, has been called “cooperative federalism.” Generally, if it is within the broad rubric of “regulating commerce .. among the several states,” Congress has the power to either set minimum federal standards to be implemented by the states, or it can simply preempt state law entirely. Because the commerce power is “delegated to the United States by the Constitution,” the 10th Amendment, by its very terms, won’t restrict it.

Idaho has been a reluctant participant in this cooperative federalism. As one of only four states to do so, Idaho has declined to participate in Clean Water Act permitting, instead allowing the EPA to issue water quality permits. Unhappy with federal requirements under the Endangered Species Act, Idaho is now threatening to quit managing wolves. But most states have found it to be more advantageous to be cooperative participants in the Constitution’s federal structure.

Short of seceding from the union, it is unclear what the vocal critics of federal power in Idaho would have us do. It would be nice if all the political sloganeering about the so-called states’ rights in the Constitution could be more consistent with what the Constitution actually says.


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We had some interesting discussions yesterday about our blog posting about Idaho’s water monitoring meltdown. Recall that we wrote:

We know that Idahoans care deeply about water quality. The failure of DEQ to accomplish the very basic minimum requirements of the Clean Water Act should be unacceptable. The legislature, which has zeroed the water monitoring budget for two consecutive years, needs to provide the resources to DEQ to do its work before the U.S. EPA, or a federal court, is forced to step in.

Some of our friends thought that we were (slightly) unfair in calling it a”failure of DEQ” to get the job done, because in fact, DEQ has requested the money for water monitoring in their budget submittals. Instead, our friends suggest, the financing failure belongs to Butch Otter, whose budget leadership is followed by the legislature, and whose budget priorities are decidedly elsewhere.

We wonder if this is a fine point that’s significant, or whether it’s a distinction without a difference. The responsibility for Clean Water Act implementation is squarely with DEQ. It isn’t optional, and Idaho’s state code makes it clear what needs to be done and who needs to do it. But if the Department asks for, but doesn’t get the resources, what is it supposed to do? More to the point, who should Idahoans hold accountable for this mess?

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