WASHINGTON, DC – Leading Tennessee and national conservation organizations today announced their intention to mount a legal challenge against the Corps of Engineers and the Environmental Protection Agency (EPA) for failing to uphold Clean Water Act protections for wetlands in the Cumberland Plateau that are crucial habitat for an abundance of wildlife and are prime recreational areas.
"The Corps cannot be allowed to turn their backs on the state's valuable water resources," said Jim Murphy, water resources counsel for the National Wildlife Federation, one of the groups involved in the action. "Wetlands that serve important functions in ensuring the health of wildlife and watersheds require federal protection from destruction and degradation."
"State efforts to protect high quality wetlands have been mixed at best," said Barry Sulkin of the Tennessee Chapter of Public Employees for Environmental Responsibility (PEER). "It is essential for the preservation of these wetlands that the Corps fulfill its duty to give them federal protection under the federal Clean Water Act."
The wetlands at issue are located to the east of the Upper Cumberland Regional Airport (UCRA) and feed into the Falling Water River in the Cumberland Plateau region. This area is one of the most biologically diverse regions of the country, known for its abundant wildlife, waterfalls and scenic hiking, fishing and hunting. The airport is planning an expansion that will cover the wetlands with pavement and a fueling station.
The 60-day notice of intent to sue over the issue was filed August 24 by the Tennessee Environmental Council, the Tennessee Clean Water Network, the National Wildlife Federation, Public Employees for Environmental Responsibility and the Sierra Club.
The Corps claims the wetlands adjacent to the airport are "isolated" and development there does not require a Clean Water Act permit. However, an expert analysis conducted for the National Wildlife Federation and the other groups shows that water from the wetlands feed the Falling Water River through a series of surface and subsurface streams, typical of hydrologic connectivity in this unique "karstic" or cavernous region.
The Corps based its decision on a U.S. Supreme Court ruling that held that a sand and gravel pit with no known hydrological or ecological connection to other waters was not covered by the Clean Water Act.
"The wetlands near the airport are high quality wetlands that bear no resemblance to the gravel pits addressed in the court decision," said Mary Mastin, an attorney representing several of the groups in the case. "According to our analysis, a permit is required to fill them under the Clean Water Act. Moreover, there is strong indication that if the Corps required the airport to apply for a permit, the permit should be denied because the airport could expand in another direction, saving the wetlands from destruction."
In an attempt to avoid litigation, the groups involved have provided the Corps' Nashville District with the results of a dye trace study showing the connection between the Falling Water River and the wetlands. Talks with the Corps are continuing. However, the Nashville District has yet to reverse its decision not to regulate the wetlands.
"If this Corps decision is allowed to stand, countless wetlands and streams in this region will lose federal protection because so many streams flow underground at some point," said Murphy. "The law is clear that the entire aquatic system must be protected. The failure to consider a high quality wetland directly connected to one of Tennessee's most treasured rivers as part of such a system is inexcusable."
"Right now the Administration has a guidance in place that does not apply Clean Water Act protection to many waters that should be covered by the Act," said Robin Mann of Sierra Club. "EPA and the Corps must protect all waters covered under the Clean Water Act. And we intend to ensure that they do."