The Smith River is one of those rare places in the West. Flowing from Oregon into California, and then into the Pacific Ocean, it is largely unaltered by humans and still supports four strains of wild-spawning salmon.
So it was with more than a little alarm that lovers of the Smith learned in 2012 that an international company wanted to open a strip mine in the river’s Oregon headwaters to dig for nickel and other precious metals. But five years later, the river is safe from such depredation.
Conservationists employed a rarely used provision in the federal Clean Water Act to protect the North Fork Smith River and all its tributaries as an “Outstanding National Resource Water.” The designation, adopted in July by the Oregon Environmental Quality Commission, halted the mine. It also essentially prohibits any activity in the watershed that would create water pollution – pretty much forever.
Despite being made law in 1972 as part of the Clean Water Act, the Outstanding National Resource Water designation is not well known. In fact, it has never been used before in the Northwest. Only two waters in California carry the designation, Lake Tahoe and Mono Lake, both of which resulted from court rulings.
To learn more about the law and how it was employed on the Smith River, Water Deeply recently talked to Grant Werschkull, executive director of the Smith River Alliance, a group based in Crescent City, California; and Gordon Lyford, a retired water quality expert in O’Brien, Oregon, who petitioned the state for the designation as a concerned citizen.
Water Deeply: Tell me about the North Fork Smith River. What’s so special about it?
Gordon Lyford: It’s very rugged country. It’s on [very rare] serpentine soil. It’s got really unique vegetation, important fisheries. There are some really rare plants in there like in these Darlingtonia fens, which are like wetlands. There’s also an agreement between state and federal agencies to manage the botanical resources in the area. There are no water rights on the Oregon side. There’s no industrial development. There are two roadless (wilderness) areas in there. There’s a fair amount of recreation out there and very limited road access. Our petition focused on fish, recreation, drinking water downstream and the botanical resources.
Grant Werschkull: It has all four salmonid species: Coho, Chinook, steelhead and coastal cutthroat trout. There is a remote subpopulation of Coho absolutely there. That subpopulation is incredibly important in terms of genetic resilience.
Water Deeply: And what about the recreation assets in this area?
Werschkull: There’s a stretch of water there that is some of the premier wilderness white water, which is actually quite accessible. People come from all over the world to paddle it. The reach with the Outstanding Resource Water designation is tougher to get into. It has some Class 5 white water on it. But it is kind of the peak of wilderness-difficult white water paddling. And the water quality is just off the chart on these stretches. People come because of how clean and clear it is in these wilderness canyons.
Water Deeply: Why did you move to protect the river under this law?
Lyford: It comes under the Clean Water Act. Outstanding Resource Waters are those waters that are so pristine that you can’t pollute them. And that’s what appealed to me. If we make this an Outstanding Resource Water, it’s going to be hard to mine in the watershed because you can’t pollute the water.
The way I think of it is, it’s kind of like a Wilderness Act for water.
Werschkull: There was no such designation yet in Oregon. Another thing we were aware of was that, in some regard, there should be no controversy because 99.9 percent of the proposed area is public land. There were no grazing allotments we could find. And there’s no commercial timber harvest.
Water Deeply: The Outstanding Resource Waters law has existed for 45 years. Why hasn’t it been used more?
Lyford: There are a number of reasons. One is agency budgets and priorities. Another reason is, the focus of the agencies has been generally on polluted waters.
Werschkull: Without question, the largest opposition against this would be the cattlemen and the farm bureau. The reason for that is they did not want the precedent. It became very clear, because I reached out to them before the hearings trying to talk to them and explaining why our community – a very conservative community – supports this. They did not want the precedent.
Water Deeply: There was an effort to designate the California side of the Smith River as “outstanding” also. What happened?
Werschkull: On the California side, I would have to say the process was flawed. It did not provide sufficient lead time to this rural, conservative community. A lot of the coastal plain of the Smith River through the estuary area is almost entirely in agriculture. Those are some of the most conservative elements in our community.
The North Coast Regional Water Quality Control Board’s closest office, up until very recently, was in Santa Rosa. They tend to be remote and not as in touch with the feelings of the community. So they did not do a good job of seeking to first counsel with the county board of supervisors and say “Hey we’re thinking about this and an Outstanding Natural Resource Water designation is being considered.” None of that was done. Instead, they did a thing where they said we’re going to have a scoping meeting and they called around with only two weeks’ notice. It was a perfect recipe to inspire fear in people.
Water Deeply: How did the process differ on the Oregon side?
Werschkull: On the Oregon side, there was a process that allowed for parties to comment and there were multiple hearings. An advisory committee was set up with representation from both Oregon and California, and people that were very opposed to it were invited to participate. And you had the outcome that we did, with the Outstanding Resource Water being declared.
Water Deeply: Would you say this is the highest possible legal protection for a river?
Lyford: I think it is for water quality. A lot of times, with new rulemaking actions under the Clean Water Act, there’s a five-year review period. There is no five-year review on this. It’s permanent. Of course, they could undo it by going through this whole process again. But it would take a lot of work.
Werschkull: From my point of view, from the point of view of the downstream community, we consider it to be very, very significant because it does provide that additional protection from a potential strip mine or an activity like that. That could be incredibly damaging and destructive to this community, which is tribal and tourism-based, and because it’s our water supply.
Water Deeply: Are there other rivers and water bodies worthy of this kind of protection?
Werschkull: I think unquestionably there are. So to have one done is very encouraging in terms of looking at others. If you were to have others so designated, that could help the agency perhaps with priority setting.
Lyford: I think there probably are. For instance, you could do Crater Lake. I think a lot of it is just agency priorities and budgeting. But if you look at New Mexico, they’ve done a lot of them. I think also Minnesota has done a lot.
Water Deeply: What advice do you have for others who may want to pursue this kind of designation on their local river?
Lyford: One thing that’s important to do is try to stay away from private land. Try to focus on wilderness areas and forested areas. Because if you get private landowners involved, then you’ve got more and more players, more and more complications.
And try to stay away from roads. Is a stream with a road alongside of it really a candidate for Outstanding Resource Waters, when you’ve got cars and trucks driving up and down, causing runoff and posing a threat of spills? Really try to go for waters that truly are outstanding.
Another thing is to take a look at flow. To me it would be difficult to make an Outstanding Resource Water designation on a stream that has low flow, like in the summer. The other thing is, you want a stream that has certain outstanding values, like endangered species, clean drinking water, botanical resources. The values have to be outstanding.