Forested wetlands receive landmark protections from federal court

A decision that will provide strengthened protection for forested wetlands throughout the United States and will protect Georgia’s coast from an abuse of tree harvesting operations was handed down recently by U.S. District Court Judge B. Avant Edenfield. At issue in Ogeechee-Canoochee Riverkeeper, Inc. v. United States Army Corps of Engineers et al. was a decision by the Army Corps of Engineers to exempt a proposed timber harvest from Clean Water Act regulation on the basis that the harvest was a part of ongoing tree farming operation. Judge Edenfield held that the proposed harvest was not a part of an ongoing tree farming operation and therefore not exempt from clean water regulations.

“By offering parameters for what is and is not an ongoing tree farming operation, the Court has given guidance that will protect thousands of acres of wetlands across Georgia and the country,” said Brian Gist, an attorney with the Southern Environmental Law Center, which represented Ogeechee- Canoochee Riverkeeper (OCRK) in the dispute with the Turner Environmental Law Clinic as co-counsel.

The site of the proposed timber cut was Cypress Lake, a several-hundred acre, partially forested lake in Bulloch County. The private company that owns the lake intended to harvest about 60 acres of cypress, blackgum, and water tupelo trees there, which would result in pollution discharges.  

The Clean Water Act requires a permit to discharge pollutants into navigable waters of the United States. However, the Act provides a narrow exemption for ongoing silviculture, or tree farming, operations. Despite the fact that tree farming had not occurred on Cypress Lake in the past and the lack of evidence to show it would occur in the future, the Corps did not require the owner to seek a Clean Water Act permit before cutting the trees.

In the ruling, Judge Edenfield noted that in order to be considered an “ongoing” tree farming operation, the activity must have occurred in the past and must be likely to continue in the future. In this case, the Court found tree stumps alone were insufficient evidence of prior timber harvests, as the trees themselves could have been cut down for a variety of reasons. Furthermore, the Court found that because the forest management plan did not include provisions to ensure future tree growth, future tree harvests were not planned.

Improper use of the silviculture exemption is increasingly applied by the Corps of Engineers along Georgia’s coast, which is facing unprecedented development pressure. To protect Cypress Lake and other forested wetlands, OCRK and SELC filed the suit against the Corps in November 2006 to put an end to this illegal practice.  An agreement was subsequently reached with the landowner to not harvest the area until the lawsuit was resolved.

“This is a great win,” said OCRK Executive Director and Riverkeeper Chandra Brown, “not just for the Ogeechee watershed but for forested wetlands everywhere. Hopefully, this case sends a clear message to our regulatory agencies: stop looking for ways to get around the Clean Water Act, and get busy doing your job – protecting our rivers and streams from pollution.”