Lawyers’ discovery of mudflow into Fernan Lake leads Idaho conservation groups to file Clean Water Act notice on Federal Highway Administration (FHWA).
A timely bit of detective work by Center for Justice lawyer Rick Eichstaedt and Gonzaga law school water law expert Mike Chappell has put a federal agency in the embarrassing position of having to defend itself against charges that it is violating the federal Clean Water Act.
Following up on leads from area residents and north Idaho conservation groups, the two lawyers were investigating reports of run-off pollution into Fernan Lake in early July when they noticed and photographed a dark, muddy plume flowing into the lake. As their 
photographs of the event clearly show, the source of the plume was a failing barrier that was supposed to be preventing stormwater run-off pollution from an FHWA road improvement project along the lake.
Fernan Lake is just north of Lake Coeur d’Alene and creates part of the City of Coeur d’Alene’s eastern boundary. The byway being worked on is known as the Fernan Lake Road, a heavily used road that traces the north shore of the lake before following Fernan Creek up into the Idaho Panhandle National Forest. Ironically, in addition to improving traffic safety, one of the main reasons for the Fernan Lake Road upgrade is to protect the lake and creek from just the sort of stormwater run-off that concerned citizens were reporting and which Eichstaedt and Chappell witnessed and photographed.
“Every time it rains, mud and sediment pours into Fernan Lake,” said Terry Harris, Executive Director of the Kootenai Environmental Alliance. “The Federal Highway Administration and its contractor have failed to implement basic measures to prevent this from occurring.”
Under the Clean Water Act, road construction projects are required to obtain a storm water discharge permit and implement measures to reduce the impact on the environment from storm water pollution. If a construction project fails to comply with the requirements of a Clean Water Act permit, individuals and citizen groups can provide notice of the violations to the violators and give them 60 days to remedy the violations. After 60 days if the violations
have not been corrected, a lawsuit may be brought.
“This issue was first brought to our attention this spring after we received complaints from our members and others about the construction activities at Fernan Road,” said Harris.
“Fernan Lake is a beautiful and a popular recreation destination, it’s important that we protect it and all of North Idaho’s lakes for the economic health of our community,” said Susan Drumheller, North Idaho Associate for the Idaho Conservation League.
Eichstaedt and Chappell co-authored the July 29th notice of violations that was filed on behalf of ICL and KEA. Chappell is an attorney with Gonzaga’s Environmental Law Clinic.
“Protecting our waterbodies from pollution caused by storm water is an important part of the Clean Water Act,” Eichstaedt said. “Here, we have a federal agency blatantly disregarding this requirement; this is simply inexcusable and the Highway Administration should know better.”
“While the legal process has just begun,” Chappell added. “We’re looking forward to engaging in a dialogue with the Highway Administration to make sure that Fernan Lake receives the 
care and protection it needs.”
To read more about the concerns about the pollution from the road project, and to download the notice of violation, visit the Kootenai Environmental Alliance website here . You can read more about the improvement project itself here, on the FHWA project website.
You can find the Spokesman-Review’s July 30th story on the controversy here.
–CFJ
