State wins federal appeal for Stokes Creek project
Monday, August 6, 2007
The straight channel of Stokes Creek north of Tigrett could finally return to a meandering stream after the state's plan won a decision in a federal appeals court on Friday.
The state effort to restore a Dyer County creek was given a boost on Friday after the Sixth U.S. Circuit Court of Appeals reversed a decision that prohibited work on the project.
The Cincinnati appeals court, in a strongly worded opinion, reversed the Memphis federal court's denial and remanded the case with instructions for the district court to allow the state to begin work on the Stokes Creek Restoration Project.
The watershed decision said District Court Judge J. Daniel Breen erred when he ruled the state could not perform work independently of the federal West Tennessee Tributaries Project (WTT). Plans by the WTT to restore Stokes Creek were hampered by a 1985 compromise, titled the Agreed Order, between the plaintiff, the National Ecological Foundation, and the U.S. Army Corps of Engineers. The Agreed Order included mandating the Corps to acquire 32,000 acres of mitigation lands before proceeding with any restoration plans in the Obion and Forked Deer river basins.
UPDATE: Creek restoration starting after decision
Tuesday, January 22, 2008
Inaction and the passage of time have finally cleared a legal obstacle blocking the restoration of a Dyer County creek.
No one appealed a decision made by the Sixth U.S. Circuit Court of Appeals, and the deadline to do so has passed. Thus, a long legal tussle over the creek's restoration has ended quietly.
David Salyers, executive director of the West Tennessee River Basin Authority, said he will soon begin work on the Stokes Creek river restoration proposal. He said he hopes to begin meeting with landowners later this year.
The basin authority intends to transform 1.5 miles of Stokes Creek into 2.4 miles of meandering channel, mimicking natural stream conditions and providing environmental benefits.
A number of restoration projects have been proposed on Stokes Creek in the last 15 years, but a threatened lawsuit has stopped each one. The root of the controversy stretches back to the 1970s, when the National Ecological Foundation sued the U.S. Army Corps of Engineers over channelization.
Channelization was designed to reduce flooding by routing rivers through straight, excavated channels. When channelization also drained wetlands where men hunted ducks, the NEF sued.
An "Agreed Order" settled the federal lawsuit in 1985. It required the Corps to acquire 32,000 acres of mitigation land, specifying which tracts must be purchased and in which order. By April 1990, the Corps had obtained 13,527 acres, but that was not enough to allow the Corps to work in the Stokes Creek area.
Both the state of Tennessee and the Tennessee Farm Bureau proposed restoration plans that met with opposition. Then, the Tennessee Department of Environment and Conservation asked the basin authority to try once more. Trying to avoid the legal obstacle that stopped other attempts, the basin authority's first step was to seek a clarification of the 1985 Agreed Order. The basin authority, in 2005, asked the federal court to determine whether a state agency must adhere to the provisions of the Agreed Order.
U.S. District Court Judge J. Daniel Breen ruled that the basin authority was bound by the Agreed Order and declined to reconsider his ruling.
The basin authority appealed the decision to the Circuit Court of Appeals in Cincinnati, Ohio. In August, the appeals court reversed Breen's ruling.
The National Ecological Foundation had 90 days to appeal the decision of the appeals court. It did not file an appeal.
The basin authority's current budget indicates that the Stokes Creek restoration project is in the design phase now. A total of $200,000 has been set aside for the project.
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