| The Governor's
Restoration Forum in Billings this summer focused on
the economic and community benefits of restoring and
reclaiming Montana's spectacular but hard-used landscape.
Speakers repeatedly referred to the ambitious
cleanup now under way in the Clark Fork River Basin,
where decades of mining waste contaminated the river
and adjoining lands and accumulated behind the Milltown
Dam at the confluence of the Blackfoot and Clark Fork
rivers.
Many are aware that the cleanup will remove
the contaminated sediments behind the Milltown Dam,
followed by the historic removal of the dam itself and
a return to a free-flowing river junction. Less public
attention has focused on the work under way to restore
the rest of the basin, especially the diverse projects
funded by Montana's Natural Resource Damage (NRD) Program.
Several federal statutes—most notably
CERCLA, the Superfund law—include provisions for
recovering damages for harms to biological and physical
resources. Under these authorities, NRD lawsuits by
federal, state, and tribal governments have sought millions
of dollars in compensatory damages from parties held
legally responsible for pollution and other environmental
harms. These complex cases typically involve multiple
parties, challenging technical issues, and many still-unresolved
legal issues.
The State of Montana filed an NRD lawsuit
against Atlantic Richfield Company (ARCO) in 1983 to
recover damages for mining-caused injuries to the Clark
Fork River Basin's water, soils, vegetation, fish and
wildlife, and for the public's lost use and enjoyment
of these resources. As part of a settlement in 1999,
the state received $215 million, including about $130
million earmarked to restore or replace the injured
resources.While the state's NRD litigation is not fully
resolved, major steps are already under way to restore
or improve the injured natural resources and the recreation
opportunities that accompany them.
Montana chose to adopt a grants program
to allocate restoration funds to government agencies,
private entities, and individuals. The governor and
state resource trustees decide which projects deserve
funding with input from the Upper Clark Fork River Basin
Remediation and Restoration Advisory Council, which
includes ten citizen volunteers and five government
representatives.
As of December 2005, approximately 50 projects
had received funding totaling just over $38 million.
(More information on the Montana NRD Program is available
here.
Conservation groups and state agencies have
applied Upper Clark Fork River Basin NRD funds to purchase
conservation easements on basin ranches, restore native
cutthroat trout habitat, and "renaturalize" damaged
river channels.
Communities receiving funds have rebuilt
damaged waterlines and acquired lands for open space
and recreation. A university team obtained NRD funds
to create a watershed education program for schoolchildren
throughout the Upper Basin. Other project grants will
fund research and assessment to better prioritize future
work in the basin. In short, a variety of innovative
projects have emerged in response to the diverse needs
of the inhabitants of this 100-mile-long stretch of
the Clark Fork River.
Many issues raised in the ongoing Clark
Fork River Basin restoration reflect national concerns
about natural resource damage assessment and restoration:
What is the best way to address the diverse needs
and concerns of multiple stakeholders in an affected
area, including Indian tribes whose treaty-guaranteed
resource uses have been impacted?
What is the appropriate balance between assessing
damages for past harms and fully restoring the impacted
resources?
In the face of scientific uncertainty and ongoing
conflicts among affected groups, how can implementation
be assured for the long-term health of the impacted
environment and human communities?
-
Under what circumstances is it appropriate to "write
off" injured resources and seek to replace them with
similar resources rather than attempting to restore
them directly? And do these goals have to be mutually
exclusive?
These questions are especially relevant
in light of an inquiry currently under way in the U.S.
Department of the Interior, the federal agency that
oversees management of the majority of our public lands
(excluding national forests).
Last year the Department convened a diverse
group of experts in the Natural
Resource Damage Assessment and Restoration Advisory
Committee.
In its short two-year span of work, this
committee is tackling issues such as the quantification
of ecological damages, whether to emphasize restoration
or acquisition of "replacement" resources, creative
means of compensation for losses, and measures to ensure
timely and effective implementation of restoration plans.
Committee members are looking at specific
examples of restoration work under way throughout the
country, seeking examples of what works, what doesn't,
and where federal policies might be improved to encourage
innovative and effective restoration initiatives.
The federal advisory committee should look
closely at the Upper Clark Fork River Basin. Our locally
crafted restoration projects offer lessons in how to
move beyond the courtroom and onto the ground. While
many conflicts remain about how best to restore the
basin and its resources—especially how and where
to allocate limited resources to get that job done—there
is widespread acceptance that the fundamental restoration
goal is the right one.
The groundswell of support for removing
Milltown Dam demonstrated that bringing life back to
the Clark Fork River transcends political, economic,
and ideological divides. And what we do in the Upper
Clark Fork Basin will provide valuable lessons for how
restoration happens in other river basins throughout
the country.
In an effort to explore and share the lessons
of the Clark Fork River Basin restoration, the Public
Land & Resources Law Review and the Public Policy
Research Institute are convening regional and national
experts for a conference on "The
Law of Ecosystem Restoration: National Policy Implications
of the Clark Fork River Basin Natural Resource Damage
Program." This 30th annual Public Land Law Program
at the University of Montana School of Law will take
place at the law school on September 25-27,
2006. For full conference details, go here.
Those who register by Sep. 9 will
get a price break, so don't wait too long.
Sarah Bates Van de Wetering is Senior
Fellow with the Public Policy Research Institute at
the University of Montana, which is a co-sponsor of
the Public Land Law Conference.
She has studied, written about, and
advocated for sustainable natural resource policies
for the past twenty years through her work in Colorado,
California, Utah, and Montana. Her most recent book,
co-edited with Phillip Brick and Donald Snow, is Across
the Great Divide: Explorations in Collaborative Conservation
and the American West (Island Press, 2001).
She has two articles in publication
this year: one on the relationship between land use
and water law (in the Public Land & Resources Law
Review, co-authored with Dan Tarlock) and one on the
use of mandatory dispute resolution in federal environmental
law (in the Journal of Environmental Law & Litigation,
co-authored with Matthew McKinney). She serves on several
nonprofit boards, including the advisory board for the
Ruckelshaus Institute of Environment and Natural Resources
at the University of Wyoming. |
