Federal Ruling Favors River Dredging
Stream anglers, canoeists, riverine wildlife watchers, and concerned citizens take notice!
A recent Federal Court Ruling of the 4th Circuit Court of Appeals held for the plaintiff (the American Mining Congress) and ruled against the U.S Army Corps of Engineers in the ability to dredge and remove substrates from our rivers and streams. The American Mining Congress previously sued the Corps, challenging the definition of "discharge of dredged material" and "incidental fallback" of dredged material. Until this ruling, the Corps regulated removal of "material" (stream substrates and aquatic species spawning habitat!) from waters of the United States. As of this date, the Corps and respective State's EPA & DNR divisions have been stripped of ALL jurisdictional and enforcement authority where in-stream mining and dredging results in "incidental fallback" into the stream reach being gutted.
Here in Ohio, we are getting contradicting interpretations of this ruling (also known as the Tullock Rule) -- it all depends on which Army Corps District you talk to. The Huntington District has explained this rule as follows: A landowner or municipality needs NO authorization, NO notification, and NO permit is currently required for the removal of material from the stream if it is accomplished using "bucket-type" equipment, as well as trucks to haul away the material. Backhoes and dump trucks are permitted in the stream reach as long as they stay within the "Ordinary High Watermark" (OHW). Gravel bars, depositional areas, pilot channels, and the material from these brutal physical activities must be placed, or hauled, above and out of the OHW -- NO notification or permit is needed!
This Federal ruling apparently is metamorphosing stream landowners into overnight amateur hydrologists on backhoes. We recently witnessed mining and dredging on Big Darby Creek, a State & Nationally Designated waterway. There is further dredging on Little Darby Creek by a landowner that wishes to "improve" the stream's conveyance and discharge as it bisects his land. I have heard of several other stream reaches in Ohio that are about to be gutted. A recent story in a local newspaper has helped spread the word of this ludicrous Federal loophole onto the landscapes of many watersheds here in Ohio. You can certainly expect landowners in your area to hear about this loophole very soon. Landowners who view naturally occurring gravel bars and depositional areas along their stream banks as a "nuisance" now have carte blanche to enter the stream, peel, dig and dredge down to OHW, and haul the material out of the stream.
The only stop gap measurement to this recent ruling might be the presence of Federally Endangered mussels, fish, or invertebrate species within that specific work site. But, how can this be pre-determined if the landowner doesn't have to notify any state/federal agency before doing the work?! I cringe to think of the lost spawning habitat, hydrologic alterations, flooding potential, and the loss of aquatic invertebrates that young-of-year smallmouth bass (and many other fish species) depend upon during their first 2-3 years of growth.
The floors of some of our finest streams are now allowed to be peeled, dredged, modified and hauled away. These same glaciated streams not only provide excellent fishing opportunities, but also harbor the highest numbers of at-risk, threatened and endangered freshwater species in the United States. Feasibly, the glaciated streams of the central Great Lakes area, and the south and south-central United States will experience the most activity due to the errant geomorphology and movement of in-stream gravel/cobble following heavy rain & flood events. The only rivers not affected are those that fall under Section 10 of the Rivers and Harbors Act of 1899 - for example, the Ohio and Muskingum Rivers in Ohio. Ecologically superior and recreationally designated blue ribbon streams are wide open -- naked and bare due to this recent Federal Court decision.
Decisions regarding critical in-stream and riverine activities such as mining and dredging MUST be left to trained, professional, public & private engineers, hydrologists, and aquatic biologists. Our nation's streams do not belong to the American Mining Congress, or to us. We are here to embrace and enjoy them, and to recreate in them. It is our ultimate responsibility to maintain and improve their integrity for future generations. I strongly urge ALL educated and ethical sportfishing brethren to contact YOUR Army Corps District and have THEM tell you their interpretation of this ruling. Press on and contact YOUR State Senators and Representatives as it may take State legislation to halt or appeal this monstrous Federal loophole. I sincerely hope that sportfishermen in Ohio and elsewhere will act on this!
Feel free to e-mail me at: sflint@tnc.org. If you have questions or would like additional information. I also have copies of the court decision should you want them mailed to you (please leave your address).
Steven Flint, The Ohio Smallmouth Alliance, 1999