Corps of Engineers Faces Suit for Allowing the Illegal Harvest of Cypress Trees in South Georgia

Statesboro - A lawsuit will be filed tomorrow against the Army Corps of Engineers for illegally allowing timber to be harvested without a permit from a lake near Statesboro. The Southern Environmental Law Center and the Turner Environmental Law Clinic, on behalf of the Ogeechee-Canoochee Riverkeeper, filed suit today in federal district court against the Corps of Engineers for authorizing the harvest of 60 acres of timber without a permit in violation of the Clean Water Act.

“If the Court does not prevent it, the Corps will illegally allow 60 acres of wetland forest to be cut and destroyed without providing any assurance that the harvested trees will ever grow back. In the meantime, those that love Cypress Lake could be left with a drained lake void of hardwood forest. This decision was illegal and the Corps must protect this area before it is permanently destroyed,” said Steve O’Day, environmental partner at Atlanta’s Smith, Gambrell & Russell counsel to SELC in this case.

The Corps of Engineers, which is responsible for permitting activities related to wetlands and other navigable waters, informed Cypress Lake, Inc. that a permit was not needed to harvest 60 acres of cypress, water tupelo and blackgum trees. While most development in wetlands requires a permit from the Corps, harvesting of trees from some wetlands may be exempt from needing a permit if the trees will regenerate naturally. The Corps determined that such an exemption applied to the harvest in Cypress Lake.

However, the Corps’ decision in this case did not define what constitutes an ongoing timber cultivation operation, nor did it ensure that the harvested trees will regrow to allow the operation to continue in the future. In Cypress Lake, the trees will not grow back unless the lake remains drained for several years to allow seedlings to regenerate. The suit asks the Court to declare that the Corps wrongly applied the exemption and to require a permit before allowing the harvest of timber from the lake.

“The Savannah District of the Corps of Engineers has a responsibility to protect the integrity of Georgia’s wetlands, including the forests that they contain. Unfortunately, the Corps has shirked this responsibility and acted to allow the harvest of a wetland forest, basing its decision on the misapplication of an exemption under the Clean Water Act,” said Mary Maclean Asbill, Director of the Turner Environmental Law Clinic.

Cypress Lake is a several hundred acre forested lake south of Statesboro in Bulloch County that provides valuable habitat to a variety of species and provides storm and flood protection. In addition, the lake is used for hunting, fishing and other recreational activities. A similar timber harvesting proposal in Louisiana resulted in the federal Environmental Protection Agency prohibiting timber harvesting unless there is a reasonable assurance that the forest will be re-established in the harvested areas. However, the Corps failed to require the same assurance that the trees will regenerate in Cypress Lake.

Instead, the Savannah District Corps of Engineers’ decision is based on an opinion by the Georgia Forestry Commission that the natural regrowth of the harvested trees “should occur” if the trees are able to regenerate from seed. The Georgia Forestry Commission explained that the water level in the lake will need to be kept down to allow seed regeneration. However, the Corps failed to require that the lake’s water levels to be kept down, so the trees will be unable to regenerate from seed. Scientists estimate that the water level in the lake would need to be kept down for up to four years to allow the trees to regenerate from seed.

“Not only is the Corps’ decision contrary to the Clean Water Act, the end result is that the lake would have to remain drained for another three or four years to allow the trees to grow back or we would permanently lose 60 acres of vital habitat for wildlife—all for just a few acres of mulch,” said Chandra Brown, Executive Director of Ogeechee-Canoochee Riverkeeper. “Both options are unacceptable. The bottom line is that the Corps should require a permit for cutting hardwood swamps in ponds and lakes, just as they require a wetlands permit for builders looking to permanently convert other types of wetlands.”

Despite the benefits they bring to coastal areas, Cypress swamps are facing increasing pressures from encroaching development as well as the sale of garden mulch made from these trees. Many municipalities in Florida have banned the use of cypress mulches and other states, including Hurricane Katrina ravaged Louisiana, are exploring similar moratoriums.