Wildness Creeps Back

San Francisco -- For eight years under George Bush, America's wilderness faced a systematic assault from the federal government. By the end of the first Bush term, more than 100 million acres that previously enjoyed federal protection had lost it.

Since last November's election, the Bush legacy has been unraveling, and the progress on this front has been encouragingly swift. Last month the National Marine Fisheries Service (NMFS) issued a biological function that will require fundamental changes in how the government operates California's water system. The biologists concluded that salmon, steelhead, green sturgeon, and killer whales all would be at risk unless the amount of water that remains in the rivers and deltaic systems is increased -- which means less diversion for irrigation.
"What is at stake here is not just the survival of species but the health of entire ecosystems," said Rod Mcinnis, administrator of the NMFS Southwest Regional Office. In addition to mandating a reduction in irrigation supplies by another five to seven percent a year, NMFS made other suggestions: The boldest is to open up the Red Bluff Diversion Dam on the Sacramento River to allow Chinook salmon and sturgeon unimpeded passage upriver.
Given that this decision comes in the middle of a serious drought that is hammering both farmers and fisheries, this announcement was yet another sign that science is back in Washington!
Then this week a U.S. District Court here in the Bay Area threw out what, I believe, is the last tattered legacy of the Bush-Mark Rey attack on the National Forests.

Pre-Bush versions of the forest-planning rules contained enforceable standards that protected wildlife, water, and forests. The earlier rules also provided opportunities for public involvement and required analysis of environmental impacts of forest plans on the national forests, impacts that result from plan decisions regarding logging levels and other extractive uses of forest resources. Bush and his USDA undersecretary Mark Rey simply threw out the idea of enforceable environmental standards -- the Court was not amused:

[C]ourts have rejected USDA's argument that the programmatic nature of the plan development rule necessarily means that it will have no effect on the environment or protected species. The USDA has simply copied those rejected legal arguments in a new document and called it a 'Biological Assessment.' This is not sufficient to satisfy the [Endangered Species Act]'s requirements....Because the EIS does not evaluate the environmental impacts of the 2008 Rule, it does not comply with [the National Environmental Policy Act]'s requirements.

It will take years to undo all the damage from the past eight years (and some places that we lost will never recover) but we're only five months in to the new administration, and the contrast could not be starker.

Remember the Cuyahoga

Cleveland, OH -- Monday was the 40th anniversary of the environmental disaster that gave America the Clean Water Act -- the day the Cuyahoga River caught fire. But memories on the Supreme Court are either short or very long. In a remarkably crabbed opinion, the Court ruled yesterday that as long as a pollutant contains enough solid material to reduce the size of a lake or river, it is not a pollutant, is outside the jurisdiction of the EPA, and can be reviewed only by the Army Corps of Engineers.

The case in point was the Kensington Gold Mine in Alaska, whose operators, Coeur Alaska Inc., want to dump all of its mine tailings into pristine Lower Slate Lake. This was not the original plan filed by the mine owners -- their original tailing disposal plan kept the waste on land. But when the Bush administration changed the definition of "fill" under the Clean Water Act to make life easier for mining companies, Coeur Alaska decided it would be cheaper and more expedient to dump all 4.5 million tons of its waste in Lower Slate Lake in the heart of the Tongass National Forest. The 9th Circuit Court had said "not so fast" and voided the permit. Pollution, the judges said, does not stop polluting just because it also fills up the lake.

Now comes the Supreme Court to rule, 6-3, that the Bush administration was within its rights to redefine pollution so that nothing solid can, by definition, be a pollutant. The mischief this opens up is almost incomprehensible -- the first step in most pollution-control technologies is to separate out the solid stuff, so you can clean up the liquids before releasing them. Now polluters can merely skip that first, cheapest step and, voila, they're no longer required to get a water-pollution permit!

Karl Marx commented that in a revolutionary time "all that is solid vanishes into air." Thanks to the Supreme Court, all that is solid in the U.S. can now vanish into our lakes, rivers and streams. As Justice Ginsberg commented in dissent, "A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid matter to raise the bottom of a water body, transformed into a waste disposal facility."

The majority logic is really quite astonishing. One reason cited for permitting Coeur Alaska to discharge into the Lower Slate Lake was that this was simpler for the company -- all it needed to know was that its discharge contained enough solids to fill the lake. Otherwise, the disturbed justices lamented, a polluter might be required to ascertain whether its pollutant violated "one of the hundreds of discharge standards" that the EPA has established under the Clean Water Act. Well, yes, that is how the law usually works. You're supposed to know whether you are complying with all of its requirements! As Justice Ginsberg pointed out, it is neither illogical nor unprecedented for the law to say that a proposal to dump something into a lake must get permission from two different agencies -- one for its potential to pollute, and the other for its impact on the physical shape of the lake.

Now it's important to understand that all of this mischief began with an improper Bush administration rulemaking that allowed mining wastes to be dumped into rivers, streams, and lakes as "fill." There is no constitutional or even statutory issue here. The Court's majority is simply genuflecting to Bush's regulatory misdeeds. And the Obama administration can, should, and must move promptly to undo this evil.

Cleaning Up the Forests

Scattered Around the West -- The cleanup of the Bush administration's phenomenal mismanagement of the nation's forests continues to grind forward in federal courts. Thus far the Obama administration has not yet put in place new leadership for the Forest Service -- one potential nominee had a lobbying background and one withdrew for personal reasons. The biggest forest-management policy issue -- the Roadless Areas -- is being managed in the short-term by Secretary of Agriculture Thomas Vilsack himself. But at the finer-grained level, it's still the lawsuits filed against Bush that are, effectively, driving forest policy.

The most recent ruling was in Los Angeles. In 2005 the Forest Service revised the Forest Plans for the Cleveland, Los Padres and San Bernardino National Forests. As was its habit under Bush, the Service didn't include any management requirements to protect endangered species. The Center for Biological Diversity sued, and Judge Marilyn Hall Patel agreed that Forest Plans require Endangered Species Act protections.

But there's a lot left to do. A new study confirmed -- as the Sierra Club and I have argued for years -- that while climate change and years of forest-fire suppression and over-cutting of big trees have substantially increased the risk of wildfire to homes and communities, the Forest Service has diverted almost all of the money appropriated to minimize these risks for the benefit of the timber industry. A University of Colorado analysis of 44,613 "fuel-reduction projects" found that only three percent of them occurred in urban-wildland interfaces or the buffer strip around them. By contrast, Congress insisted that at least 50 percent of the money be devoted to community protection -- and the Sierra Club advocates spending 100 percent for five years to get rid of the worst of the backlog.

One major factor, the study's authors found, was that a majority of the most critical urban-wildland community-protection zones -- 71 percent -- are on private lands, and only 17 percent are under direct Forest Service jurisdiction. "Our results suggest the need for a significant shift in fire policy emphasis from federal to private lands, if protection of communities and private property in the wildland-urban interface remains a primary goal," the authors wrote.

The bottom line: We've spent $2 billion since 2000 without reducing the number of acres burned, homes destroyed, or firefighters killed. President Obama's new forest chief is badly needed.