Turf war turns into environmental issue

Turf war turns into environmental issue

July 8th, 2012 by Pam Sohn in News

An old tire sits half-covered by dried mud next to ruts in a dirt road on the side of Aetna Mountain on Wednesday. New development in the area around Aetna Mountain Road is causing a stir with the regular patrons of the mountain area.

Photo by Jake Daniels /Times Free Press.

Illustration by Laura McNutt /Times Free Press.

In the torrent of rain that accompanied tornadoes in late February 2011, a plug of mud swirled down an Aetna Mountain creek and plopped into the middle of U.S. Highway 41.

Some of the mud traveled on, eventually washing into the Tennessee and creating a sandy delta jutting an acre or more off the river bank.

But the blame didn't go to the storm supercells that National Weather Service meteorologists said dropped up to 2 inches of water with tornadoes that struck South Pittsburg, Signal Mountain and Red Bank.

Instead, on March 10, 2011, a Tennessee Department of Environment and Conservation memo states Chattanooga's TDEC field office staff tracked the avalanche to the top of Aetna Mountain where TVA transmission lines cross the mountain and hold the ruts and scars left by off-road vehicles.

What began as a turf war between developers of a high-end proposed enclave atop Aetna Mountain and a club of four-wheelers who enjoy partying with extreme terrain suddenly had morphed into an environmental degradation issue.

And complaints normally fielded by state environmental regulators have been amped up by the very powerful nonprofit and donor-funded Southern Environmental Law Center, which just opened a new Nashville office this year.

"Decades of unmanaged [off-highway vehicle] use have created a deteriorating condition that cannot be stabilized so long as OHV use continues. The rutted scars left by cross-country OHV riding on Aetna Mountain erode further with every rain, degrading water quality and sending massive deposits of sediment into the Tennessee River and its tributaries," states a Southern Environmental Law Center comment brief written by litigator Anne Davis in May.

The four-wheeler club that uses the mountain, WeRock, takes issue with that assertion, as well developers' portrayal of them as outlaws and trespassers.

Christie Perkins, head of the WeRock Club, says the development of 2,000 homes and a new taxpayer-financed road will cause far more sedimentation and erosion problems than four-wheelers on the power line easement. And she said they have had permission to be there from the land-owners whose property the power line crosses.

"We keep the place cleaned up. Before my club got up there, there were burned-out vehicles up there, garbage. Without us, it's going to be hell up there. And when they go up there and start building roads and houses, where is all the wildlife that TWRA is supposed to be protecting going to go?"

Ruts and ravines

As with many environmental issues, there seems as little solid ground on what constitutes harm to the environment and who's responsible as there is on the four-wheeler ruts that crisscross Aetna Mountain.

The ruts trail up and down steep ravines and run for miles along the power transmission rights-of-way of the Tennessee Valley Authority. Made by enormous off-road vehicles specifically made for such terrain, the ruts cross public land held by the Tennessee Wildlife Resources Agency, land owned by the Tennessee River Gorge Trust and the property of a friendly private neighbor. Both the neighbor and the Gorge Trust's executive director, Jim Brown, said they have allowed the club to cross their land on the TVA right-of-way.

But in 2006, TWRA designated the 1,200 acres it acquired from a private landowner with federal Forest Legacy money as a wildlife management area. That designation brings with it a policy against four-wheelers.

Now TWRA and the developers of Black Creek homes at the foot of the mountain and those planned for the top say the club and its members are "trespassing."

The developers have blocked a public road the four-wheelers often used to gain access to the mountaintop. The developers -- Doug Stein and Gary Chazen -- tried to have the road closed, but lost that bid in a lawsuit. Now developers have secured a $9 million commitment from city officials for a new public road up the mountain.

Google Earth shows the extreme off-road trails plainly. The bird's-eye view shot from planes and satellites gleams with bare sandstone and the orange-red dirt slung from big-wheeled muscle cars in the midst of broad and unsettled mountain wilderness.

Who's responsible?

Sam Evans, another litigator with Southern Environment Law Center, said it, like the state agencies and developers, is frustrated by the morass of complications that are stalling action.

"Under the laws designed to prevent this sort of damage, the landowner, TWRA, has responsibility for cleanup, even if the landowner isn't at fault. As an additional complicating factor, the landowners have had trouble preventing the damage because TVA has removed all the trees from the easements, making a huge, open playground with no vegetation to hold the soil in place."

Evans said he and Davis have "encouraged" TDEC to open a public comment period to gather information and public input "about who is responsible under the Clean Water Act."

"We believe that this problem can be solved if all involved parties will sit down at the table with TDEC," Evans said. "It will cost money to repair the damage, but it will be much more expensive to leave the trails in their current condition while tons of dirt continue to smother streams and wash into the river."

He estimated the cost could "run into the millions."

TWRA spokesman Dan Hicks said his agency just closed a public comment period on the issue, and the majority of people want the extreme four-wheeling to stop and the damage repaired.

He said TWRA had a staff committee meeting Thursday and decided to take that course, though more meetings will be needed before a formal decision is announced.

"We cannot access the area with the four-wheel-drive vehicles we are issued by the state, and we worry about that from the public safety standpoint," he said.

"It's a time bomb waiting to go off from the public safety standpoint. I can't imagine what we would do if one of those vehicles rolled over on a crowd of people. I can't imagine how we'd handle it," he said.

Tracking efforts

"The ball is in TWRA's and TDEC's court," Evans said.

TVA policies preclude four-wheelers beneath their power transmission lines if the utility own the land. But that policy doesn't apply to power transmission lines where TVA does not own the land, but has only a right-of-way easement.

The Tennessee Department of Environment and Conservation has a 2-inch-thick file on the issue of Aetna Mountain, but has not taken action against either of the land-holders, both sister conservation organizations.

Email exchanges between TDEC water pollution field supervisor Dick Urban and TVA's senior manager for compliance interface and permits, Cynthia M. Anderson, offer a measure of environmental regulators' frustration.

"While TVA regrets that soil erosion is being caused by others on the [right of way], we do not have any authority to patrol or remove persons ... except where activities may endanger the transmission structures. To date we do not have evidence of this. Unfortunately the removal of trespassers is the landowners' responsibility," Anderson wrote.

More email exchanges in April 2011 show TWRA had received verbal support from the developers to stop the four-wheeling.

TWRA's Dave McKinney wrote to Urban that Stein told him he had Chattanooga annex the area of the mountain in Hamilton County "to obtain police assistance in stopping the off-road vehicles from accessing Aetna Mountain through Cummings Cove/Black Creek subdivisions."

In another email, McKinney wrote to Urban: "I suggest you find a TVA contact and begin to explore how much cooperation is available from local law enforcement and the DA. ... It's obvious this situation will only continue to get worse without a coordinated response."

In February of this year, one former four-wheeler wrote a letter that now also is in TDEC files.

"Hillsides are being devastated, run-off streams are being used as trails, and wildlife tormented. ... To help those who did not have large or powerful vehicles get up the WeRock members' trail, a 'buggie' with bolts in its tires, drove up and down steep sections of trail while spinning said tires. This may have provided traction for others, but it also displaced about six inches of packed soil."

When regulators tracked the storm-driven mudslide from the river to the mountain's top, they found what the four-wheelers call "the peanut butter hole."

It is a natural ravine on land owned by the Tennessee River Gorge Trust. Brown said he has made an agreement with the WeRock group allowing them to ride there if they keep the property clean.

But Davis and regulators say the four-wheelers dammed up the lower end of the ravine to make an amphitheater-sized mud hole to play in.

Perkins said they didn't dam the ravine. Rather, natural forces did with washed-out rocks, dirt and fallen trees.

"We cleaned it [after the slide] to help get TDEC off Jim Brown's back," Perkins said. She said club members took heavy equipment up there to clear what hadn't been blown out by the powerful storm.

"It doesn't fill up as much as it did. Now the water is redirected to vegetation," Perkins said.

Sorting interests

Brown acknowledges there are many conflicting and complicated questions, not the least of which is Chattanooga's interest in touting itself as an outdoor tourist destination.

"This is a tough issue," he said. "I can see both sides of the argument. These aren't bad people. They just want to do able to do their thing."

On the other hand, he said, the streams and river need to be protected.

"I'm trying to work with everybody," Brown said.

Water expert and activist Rene Hoyos, executive director of the Tennessee Clean Water Network, is one of the groups the Southern Environmental Law Center represented in its comments to TWRA about stopping the four-wheeling on the mountain.

But Hoyos said she agrees with the four-wheelers that development won't help the mountain and its wildlife management area either. Nor will it help the river.

"I'd say they're both bad," Hoyos said, noting that her organization tracks the citations and cases brought by the Tennessee environmental regulators.

Sedimentation and E. coli problems "trade off" about every two years as the greatest water quality issue statewide, she said.

Sedimentation is mud from erosion choking the ecology that helps keep streams and rivers clean. And most of it is caused by construction, she said.

E. coli is a bacteria from sewage and septic systems, another problem caused by developments after the construction is over and families move in.

"When homes are being constructed, it's an even apples-to-apples comparison," she said of the destruction capabilities of four-wheeling and development, even though builders try to use erosion controls.

"After the homes are built and people move in? Then you're trading other pollution problems from road oils and chemicals and septic or sewage issues," Hoyos said.