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The USFWS wetland inventory map. An arrow shows the bulldozed Sackett property.

It took all of 5 minutes to create the above map, using the US Fish and Wildlife Service wetlands mapper. Had the Sackett’s taken the time to to look into it before bulldozing their property and filling it with gravel, or had they made a call to the US Army Corps of Engineers for an advance wetland determination, they could have avoided the legal mess that they find themselves in. 

Indeed, it is so easy that since 2008, Bonner County has required this minimal wetlands reconnaissance prior to granting Building Location Permits.

This map is not the final word, because before EPA actions can be enforced by a court, experts will need to discuss, for example, whether the map is accurate, whether the soils are wetland soils, and whether the plants are wetland plants. Foremost, the EPA will need to prove that there is federal jurisdiction, by proving there is “a significant nexus” to “navigable water.”

Ultimately, the Sacketts could very well be right about the non-existence of wetlands on their property. Still, a modicum of due diligence should be a prerequisite for a Supreme Court case of Constitutional due process.  It takes very little effort to avoid EPA enforcement actions.

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Well, it seems we’ve touched a nerve over at the Sacramento-based Pacific Legal Foundation. They are NOT pleased with our recent blog posting about the Priest Lake wetland case. Pacific Legal Foundation represents the Sacketts in their procedural fight with the EPA.

Of course, the “PLF Liberty Blog” doesn’t really take issue with our analysis. Mostly they are critical of our lack of outrage over the EPA’s use of their Clean Water Act authority. And they are critical of our emphasis on the procedural nuance lost in the broadly anti-EPA Fox News coverage.

So, to be fair we will officially admit it — we’re as ideologically-driven as they are.  But our outrage is more typically reserved for people who bulldoze wetlands without a permit.  As we wrote in our posting, the U.S. Supreme Court will tell us only how the wetland issue will get decided under the Clean Water Act.  Which is why we will reserve our outrage until a Court weighs the evidence on both sides.

 

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If you only read what is coming out of congressional offices and only watched Fox News, you’d certainly think that local heroes Mike and Chantelle Sackett from Priest Lake are about to go to the Supreme Court and bring down the whole EPA.  Finally, they say, the overreaching federal agency and their wetland tyranny will be shut down once and for all.

Instead, at most, it’ll clarify a difficult procedural point in the Clean Water Act. Indeed, the Sacketts could win their Supreme Court case and still end up with wetland enforcement on their property by EPA. It’s just a matter of how that enforcement gets done.

The Sacketts have challenged a structural legal problem in enforcement of the Clean Water Act. Fundamentally, the EPA says there are wetlands on the property, the Sacketts say there are no wetlands. The question at the Supreme Court is essentially how that dispute gets resolved. The Sacketts say they should get to affirmatively go to court to immediately decide it. The EPA, and the lower courts, say the actual language in the law does not allow such a court challenge. Instead the Clean Water Act suggests that Sacketts can get a permit or they can defend against an enforcement action in a court. It is a major case because a wide range of environmental and other federal statutes are structured similarly.

An imperfect but illustrative analogy is that a speeder is pulled over for going 70 mph in a 55 mph zone. The speeder points to a sign, directly in front of the cop, that says “Speed Limit 70.” The cop issues the ticket anyway. The traditional remedy is that you appeal the ticket in Court. The Sacketts, however, are essentially arguing that they should get to go to court to dispute the facts before the cop even issues the ticket.

The case does raise an interesting question of fairness and “due process” perhaps. The Sacketts argue that the EPA determining that there are wetlands on their property means they either need to get a permit, which can be expensive, or they can be appeal a wetland violation in court, which can also be expensive. However, in truth, due diligence by the landowner, along with competent and honest advice from lawyers and land development professionals, will almost always avoid these wetland problems. (Mike Sackett, an excavation contractor of all things, should know this.)

Instead, in this case, we have an ideologically driven lawsuit by the ideologically driven Pacific Legal Foundation which may or may not decide a fine point of Clean Water Act enforcement procedure. So, don’t believe the hype. To be completely clear, what is not in dispute in the Supreme Court case is:  wetlands are regulated; EPA and the Corps of Engineers have regulatory jurisdiction and authority; if you fill wetlands you need a permit; and if you fill wetlands without a permit you are violating the law and you are subject to enforcement. When you get your day in court is the only issue to be determined.

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It’s been a week since Conoco-Phillips says they noticed a “drop in pressure” in their gasoline pipeline between Billings and Spokane. And we’re still waiting for an explanation.

Booms are in the Coeur d’Alene River. Workers in hard hats and pickup trucks are thick in the Enaville to Cataldo stretch of pipeline in question. Promises of testing and inspection and results have been issued, but we’re still waiting for results. Even if there’s no leak and the whole “loss of pressure” thing is some sort of unfortunate technological false alarm, it shouldn’t take a week to figure it out.

Lately, we’ve heard from several nearby residents now that cleanup workers and their “security” are hard-line and tight-lipped about what is happening along the possibly leaky pipeline. We understand that it must be frustrating to the company that it can’t find the problem, but it’s even more frustrating to the nearby public. Indeed, information has been lacking from the beginning. When did the company and responsible agencies plan to tell the public? KEA, from what we can tell, was first to break the news.

We’re certainly hoping that whatever the problem is, it isn’t catastrophic. Still, and regardless, this whole situation is not acceptable. Under no circumstance should it take a week to diagnose a gasoline pipeline problem.

 

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We thought the Yellowstone River oil spill this past summer was a little close for comfort. Well, guess what. We got word late yesterday afternoon, with some additional information trickling in to us today that a 10-inch Conoco-Phillips pipeline, pumping unleaded gasoline from Billings to Spokane is suffering a “slow drop in pressure” somewhere between Pritchard and Cataldo.  The current focus of attention is in the Enaville to Cataldo stretch.

From an email from Sandy Von Behren in Kootenai County’s Department of Emergency Management:

Yellowstone Pipeline (Conoco/Phillips) identified a small reduction in pressure in their 10” high pressure petroleum pipeline between Prichard and Cataldo this past Saturday.  Yellowstone reps have walked the entire line between Prichard and Cataldo and have not located any indication of the leak on the surface.  There are a couple of areas where the pipeline is exposed in the Coeur d’Alene River, but they were aware of this before and had sought permits to mitigate that particular issue. 

They are currently in full response running 24-7 operations with an estimated 40 staff in place and another 40 coming this way.  They plan to purge the line of fuel and place a pig (a pipeline inspection gauge) in the pipeline using water to propel it as they continue to assess for any leakage.  If they do not find any leakage they may have to start digging up the pipeline in the area of concern.  They have placed skirting and absorbent booms as a precautionary measure in the Coeur d’Alene River just below the community of Kingston and also at the Cataldo boat launch.  Yellowstone Pipeline is setting up a command post this afternoon at the Silver Mountain Resort.

An update this morning from DEQ states:

 Saturday the [Conoco-Philips] control center noted a slow drop in pressure in a 10 inch pipeline carrying unleaded gasoline between Prichard and Cataldo.  C-P responded by lowering the pressure in the line from 900 psi to less than 400 psi where it currently remains. 

C-P has monitors watching the river crossings.  A containment boom has been placed at Cataldo below the boat launch and along River Road at Kingston.  C-P currently is aware of two pipeline exposures in the river, one near Silver Bridge on the NF CdA River and one that was discovered last week at Kingston.  The Silver Bridge exposure has grout bags draped over the pipe until a more permanent fix is done next year.  The other exposure remains as it was found. 

The area of interest is now between Enaville and Cataldo.

 

Here’s hoping we don’t have (another) huge mess on our hands in the Coeur d’Alene basin.

 

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“Take all the acronyms, the scientific formulas, the political agendas at cross purposes and the bitter cross-state line disputes. Flush it all down the toilet.”

Or so the ever-helpful CDA Press editorialized this past Sunday.  The paper is evidently calling for some sort of misguided citizen uprising against yet-to-be-determined sewage rate increases caused by yet-to-be-permitted sewage treatment upgrades. Wildly missing the mark though, the CDA Press does the region no favors.

In fact, some 13 years into an impossibly complicated process, the polluted Spokane River and particularly he green-slimed and oxygen-starved Long Lake finally have a reasonable cleanup plan that requires significant pollution reductions to all the dischargers on the River, including Idaho’s. Despite the editorial’s unfounded and hyperbolic claims, Idaho municipalities discharging onto the River are already committed and are hard at work designing and testing improved sewage treatment technologies.

Indeed, the reality ignored by the CDA Press is that there is no circumstance under which any of the dischargers in the Spokane River will be avoiding additional levels of sewage treatment. These improvements to wastewater infrastructure are being implemented on both sides of the state line. The actual discharge limit that will be written into Idaho permits is still a hard-fought and complicated question, but there is universal agreement that whatever the limit is, it will be much much lower than it is now.

In fact, the Washington Department of Ecology has been open to innovative ways to accommodate polluters on both sides of the border. Enabling concepts like bubble permits, seasonal averaging, pollution and pollutant trading, and bioavailability adjustments, the regulators are bending over backwards for pollution dischargers.

Most significantly, the sewer rates aren’t set yet. In fact, the City of Coeur d’Alene has appointed an advisory committee to review how the sewer rates and necessary infrastructure investments will be phased and financed. Rates will certainly be going up, but how much and how fast are still very much open questions.

These investments are certainly not easy. And they are unquestionably going to be expensive. But it’s the right thing to do for our river if we are going to continue to use it to dispose of our sewage. The hyperbole and nonsense being spewed by the CDA Press is not helpful.

 

 

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KEA is surrounded by great Waterkeeper activism, and we are partners with keepers in a lot of clean water efforts in North Idaho and the Spokane River. In an email we received yesterday, Lake Pend Oreille Waterkeeper, our water quality neighbors to the north, announced the appointment of a new waterkeeper, replacing founding keeper Jennifer Ekstrom who is moving on to new adventures.

Shannon Williamson takes over as the new Lake Pend Oreille Waterkeeper next week.  Shannon is a high-powered PhD marine scientist and professor who has authored or co-authored more than 20 peer-reviewed scientific journal articles and several chapters in graduate-level textbooks.  We’re really looking forward to working with her.

 

 

 

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