March 13, 2013: Upper Chattooga Boating Issue Update by Mary Topa Executive Director

ForestWatch files complaint and motion citing lack of comprehensive management plan.

As many of you know, the Forest Service opened 17 of the 21 miles of the upper section of the Wild and Scenic Chattooga River to boaters on December 1, 2012, for the first time in nearly four decades. This section of the Chattooga River winds its way through the Ellicott Rock Wilderness Area, Chattooga Cliffs, and the Rock Gorge Roadless Area. This section is especially important from a conservation perspective because of its remarkable biodiversity, which includes rare spray cliff communities. Seasonal boating is now permitted from December 1 through April 30, at river flows of 350 cubic feet per second or greater as measured at the gauge at Burrell’s Ford Road Bridge

A few weeks after the opening day in December 2012, Georgia ForestWatch lawyers filed a complaint and a motion to enjoin boating on the Upper Chattooga, challenging the Forest Service’s failure to protect the exceptional natural resource values which caused the Chattooga to be designated a Wild and Scenic River. Our arguments cite the Forest Service’s failure to appropriately plan access to the Chattooga Corridor, including their failure to complete a visitor capacity analysis, reliance on user-created access trails, self-registration by boaters at locations prohibited by federal regulations, and lack of a single comprehensive management plan for the Chattooga Corridor.

More recently, I attended the U.S. District Court hearing on Upper Chattooga boating that occurred on February 27th, 2013, in Spartanburg, SC. American Whitewater and other boater groups sued the Forest Service, seeking boating on the entire Upper Chattooga, without flow or season limits. They have argued that boating is an ORV (outstanding remarkable value) on the Wild and Scenic-designated sections of the Chattooga River, and as such, boating should be both protected and enhanced. They have also argued that the seasonal and river flow restrictions are discriminatory, infringing on their Constitutionally-protected right to boat on the Chattooga headwaters, upstream of Highway 28.

This hearing was a great opportunity for me to learn more about the arguments from the boating groups, Forest Service and intervenors (Georgia ForestWatch, the Rust Family and Whiteside Cove Association), particularly since the lawyers had to present their arguments to a new judge unfamiliar with the case’s long history and nuances. The judge gave the boaters ample opportunity to justify their argument of why boating should be a protected ORV with no restrictions, and why it should be prioritized over other ORV descriptors for the Wild and Scenic designation and other recreational activities. Although recreation is considered an ORV, the boating groups failed to present solid evidence suggesting that a particular recreational use (in this case, whitewater boating) can be an ORV. Throughout the hearing, the subject of balance kept coming up, and the Forest Service’s right to manage the area and set restrictions in order to protect the resource. The judge questioned on numerous occasions whether one user group should have priority over the others, and wasn’t it the Forest Service’s job to maintain balance and protect the resource?

Georgia ForestWatch’s presence in this court case is important for conservation of the Upper Chattooga because American Whitewater’s arguments challenge the Forest Service’s ability to regulate recreation. The court’s decision could result in placing the management of particular recreational pursuits above conservation as a priority on Wild and Scenic Rivers and in wilderness areas – not just on the Chattooga and in the Ellicott Rock Wilderness Area, but nationwide. That is one reason why our lawyers from Kilpatrick Townsend & Stockton LLP in Atlanta and Greenfire Law in Berkeley, California, pushed for Georgia ForestWatch to have intervenor status in the boaters’ court case. As a result, Georgia ForestWatch was able to present the broader policy concerns that the boaters’ petition raises and bring up resource protection issues that otherwise would not have been discussed, such as erosion of the user-created access trails that the Forest Service is relying on for boater access.

It may take months before the judge files her opinion on the boaters’ court case, and before we get our day in court regarding our complaint filed in December. But Georgia ForestWatch will continue to work hard to ensure a balance between recreation and conservation on both trail systems and in stream and river corridors.

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