ELR Citation: ELR 20047
No(s). 73-1163 (1st Cir. Nov 30, 1973)

The Act of May 9, 1900 exempts log driving on the upper Kennebec River in Maine from the provisions of the Rivers and Harbors Act of 1899 concerning obstructions to navigation, but nothing in the 1900 Act or its legislative history exempts this activity from the restriction on pollution of navigable waters found in the Refuse Act portion of the 1899 statute. With reference to that restriction, the court finds that the sinking of waterlogged timber and the sloughing off of bark from floating logs may cause significant pollution, and that the lack of the statutorily required permit may justify some form of equitable relief. The fact that log driving after October 1, 1976, has been banned by state law does not affect the court's disposition of the case since substantial pollution could occur in the interim, the deadline might be extended or eliminated, and there is in any case the additional issue of remedial relief. The case is remanded to the district court with instructions to determine whether the sunken timber and floating bark do in fact constitute pollution rather than obstructions to navigation, and if so, to fashion an appropriate equitable decree.

Counsel for Plaintiff
Walter Kiechel Jr., Deputy Asst. Attorney General
Raymond N. Zagone
Thomas C. Lee
Carl Strass
Department of Justice
Washington, DC 20530

Peter Mills, U.S. Attorney
Federal Building
76 Pearl St.
Portland, ME 04111

Counsel for Defendants
Robets B. Owen
William D. Iverson
Covington & Burling
888 16th St., NW
Washington, DC 20006

Vincent L. McKusick
Daniel E. Boxer
Pierce, Atwood, Scribner, Allen & McKusick
465 Congress St.
Portland, ME 04111

Loyall F. Sewall
Verrill, Dana, Philbrick, Putnam & Williamson
57 Exchange St.
Portland, ME 04111