This Month's Issue of ELR

Salmon require cool temperatures to migrate and reproduce. The Clean Water Act (CWA) requires states to develop and implement water quality standards sufficient to produce fishable waters. Nearly a half-century after its 1972 enactment, the modern federal statute’s goal of fishable waters has yet to be achieved in the case of salmon streams. Recent cases that attempt to enforce the long-delayed temperature total maximum daily load for the Columbia and Snake Rivers through §401 certifications offer some hope that the CWA can become a vehicle for cooling the river temperatures, especially in the Columbia Basin, and promoting salmon recovery. But that will require overcoming determined opposition to changes to the status quo.

When the Internal Revenue Service began disallowing gifts of perpetual conservation easements for claimed failures of perpetuity requirements, it tumbled land trusts, landowners, and the U.S. Tax Court down the rabbit hole to a baffling land below. The Service’s drop into matters beyond valuation and into elements intended and necessary for easement durability and flexibility has caused a confusing array of Tax Court decisions. Part One of this two-part Article examines how the Service lures the land conservation community and the Tax Court into Wonderland distortions, and the precarious tower of cards upon which its legal theories rest. Part Two, in the next issue, will identify the fundamental elements of law and the process of law to topple the Service’s card construct, and awaken and return everyone to the world above ground.