Stream Restoration: A Source of Liability?

As an attorney and a geomorphologist interested in stream restoration, I wonder about liability for a restoration project if it damages property. Stream restoration is a popular and growing activity. Be it to improve habitat or other worthy goals, what happens if a restoration goes wrong -- or is at least accused of going wrong? What if, for example, a claim is made that the stream restoration project is causing increased flooding? Could happen. In fact, it has.

In a lawsuit recently filed in Whatcom County Superior Court, Washington, property owners allege that a project on an adjoining property is causing increased flooding. While the suit is in early days, with only a complaint and one answer filed to date, and with the factual situation not yet entirely clear (at least to me), I think it worth following for those involved in restoration work.

Streams and rivers are fickle beasts with minds of their own. Stream flow is the architect of its own channel, to paraphrase the great geomorphologist Luna Leopold.

In Shuksan v. Whatcom Conservation District the complaint alleges at paragraph 10 that "[a]n important feature of the new channel was that it was designed to convey 'bankfull' flows but not higher flows." The answer of the conservation district is, in part, that "[t]he District admits that paragraph 10, provides a generally accurate description of design specifications that speak for themselves."

It is generally thought that "bankfull" discharge will occur about once every two years in a natural channel whose bed and banks are composed of materials that the stream flow has transported in the past and will transport again in the future. So, if one sets out to restore a channel to its natural condition, one would most likely seek to recreate a channel sized to just carry "bankfull" discharge. If so sized (and much effort has been expended in how to determine this size by folks doing restoration work), that stream channel will flood over its banks every couple of years.

Now there are almost certainly complicating issues in Shuksan that the highly accomplished attorneys involved will suss out to great effect. This writer takes no position on who will or should prevail in this suit. The point for me is the more general issue: a stream restoration is not essentially a flood-control project. Flooding can be an issue with a restoration project.

Updates will follow as warranted.

Court of Appeals Issues New Opinion Upholding Jefferson County's Channel Migration Zone Critical Area Ordinance

Yesterday, Division II of the Court of Appeals withdrew its prior opinion in Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, 4027-6-II, and issued a new opinion. The new opinion finds that the County properly applied "best available science" in requiring retention of vegetation in valley bottoms with migrating river channels.

We agree with the Board that the County addressed the relevant sources of best available scientific information included in the decision malting on the record as WAC 365-195-915(1)(b) requires. As the Board observed, the BOCC 2008 ordinance specifically identified a 24-page bibliography of scientific literature that the BOCC evaluated in order to develop the critical areas regulations See Ordinance 03031708 at 17 Ex A. Additionally, the findings in the 2008 ordinance singled out detailed studies and reports by the Department of Ecology, the Bureau of Reclamation, Perkins Geosciences, and a former manager of the County natural resources division. Ordinance 03031708 at 910. The 2009 ordinance incorporated these findings and cited additional studies and maps by Perkins Geosciences as the scientific basis for addressing the Board's final decision and order. Finally, as the Board recognized, these studies and reports discuss in part the specific value at issue here, the importance of vegetation in the river environment "especially in regards to its significant role in erosion control bank stabilization bank protection and bank accretion." 1 AR at 825.
We do not read Concerned Friends of Ferry County as imposing a duty on a county to describe each step of the deliberative process that links the science that it considers to the adopted policy or regulation. Nor does the relevant Department of Commerce regulation impose such a duty -- rather it requires that counties "address...on the record ... [t]he relevant sources of best scientific information included in the decision making." WAC 365-195.915(1)(b). Here because the County complied with this requirement we conclude that the Board correctly applied RCW 37.70A.172(1). [Emphasis added.]

So, as long as you cobble together a bibliography, you're home free.

News from the Deepwater Horizon Multidistrict Litigation

Not Washington, but interesting:

BP tried and failed to get a piece of Transocean's $750M insurance coverage: Order(InsuranceActions).pdf Note the language from the Drilling Contract at p. 40:

Article 24 of the Drilling Contract allocates responsibility for pollution risks between the
“Contractor” (Transocean) and the “Company” (BP):
24.1 Contractor Responsibility
[Transocean] shall assume full responsibility for and shall protect, release, defend,indemnify, and hold [BP] and its joint owners harmless from and against any loss, damage, expense, claim, fine, penalty, demand, or liability for pollution or ontamination, including control and removal thereof, originating on or above the surface of the land or water, from spills, leaks, or discharges of fuels . . . or any other liquid or solid whatsoever in possession and control of [Transocean] and without regard to negligence of any party or parties . . . . [Emphasis added.]
* * *
24.2 Company Responsibility
[BP] shall assume full responsibility for and shall protect, release, defend, indemnify, and hold [Transocean] harmless from and against any loss, damage, expense, claim, fine, penalty, demand, or liability for pollution or contamination, including control and removal thereof, arising out of or connected with operations under this contract
hereunder and not assumed by [Transocean] in Article 24.1 above, without regard for negligence of any party or parties . . . .
Rec. Doc. 3211-6, at 11-12.

There are cross motions for partial summary judgment (essentially re liability) betwixt BR and Transocean awaiting decision: MinuteEntry.pdf (p.3)

The Court heard oral argument on Transocean’s Motion for Partial Summary Judgment against BP to Enforce BP’s Contractual Obligations (Rec. Doc. 4477) and BP’s Cross-Motion for Summary Judgment against Transocean (Rec. Doc. 4827). John Elsely argued on behalf of Transocean. Andy Langan argued on behalf BP. Steve O’Rourke argued on behalf of the United States. The Motions (Rec. Docs. 4477 and 4827) were taken UNDER ADVISEMENT.

According to news reports, BP hopes to evade the Drilling Contract language by claiming "gross negligence" on the part of Transocean. Good luck with that. Article 24 (supra) says "any loss .... " Should have a decision soon. The liability trial is set to start on February 27, with damages to be tried in July. OilSpill/Orders/PTO32.pdf

BP is represented by Kirkland and Ellis. Transocean went with a Texas firm, Royston Rayzor. Heavy hitters, to say the least.