All Carrot and No Stick: Why Washington's Clean Water Act Assurances Violate State and Federal Water Quality Laws

• Publication year: 2021

ALL CARROT AND NO STICK: WHY WASHINGTON'S CLEAN WATER ACT ASSURANCES VIOLATE STATE AND FEDERAL WATER QUALITY LAWS

Oliver Stiefel(fn*)

Abstract: Current Washington State rules governing timber activities-including logging, road construction, and timber processing-were achieved through negotiated compromise. In response to growing concern over the decline of several salmonid species, stakeholders from government agencies, environmental groups, and the timber industry negotiated a plan for regulating timber activities to better meet the needs of aquatic species, while maintaining a robust and sustainable timber industry. The rivers and streams flowing through Washington's forests provide habitat for numerous aquatic species, including several species of anadromous salmonids. Timber activities, however, pose a threat to healthy habitat. In the 1990s, degraded forest habitat in Washington necessitated a change in policy. Without such a change, stakeholders would face a difficult dilemma: if those conducting timber activities continued under the status quo, they would risk costly litigation brought under the federal Endangered Species Act (ESA) and Clean Water Act (CWA), dramatic regulatory modifications in the future that would make timber operations economically impracticable, or both.

Stakeholders opted for a middle ground, devising and implementing a two-part framework for managing timber activities. First, they strengthened rules in order to provide better species protection. Second, they obtained assurances from the federal government that the new rules were strong enough that they provided those conducting timber activities in Washington (1) with immunity from lawsuits under the ESA and the CWA and (2) with regulatory certainty-that is, that no additional, more protective restrictions would attach to the new rules. While this regulatory framework is permissible under the ESA, an assurance of compliance with state and federal water quality laws does not square with the clear mandates of the CWA.

INTRODUCTION

Forests, and the rivers and streams flowing through them, are the lifeblood of the Pacific Northwest. In addition to providing habitat for a vast array of species(fn1) like the iconic salmon, forests also contribute ecosystem services like carbon sequestration.(fn2) In addition, the forestry industry provides jobs and bolsters the regional economy.(fn3) Balancing the value of forests as habitat and for their ecosystem services against the value of forests as sources of jobs and commodities can present a variety of challenges.(fn4) Uncompromising protection of forests for ecological purposes would threaten the viability of a sustainable forestry industry.(fn5) Concerns about unpredictable regulations weigh heavily in decisions about converting forestland to uses that have greater ecological consequences, like residential development.(fn6) Providing a regulatory climate more likely to keep landowners from converting forestlands thus remains an important objective for all parties.(fn7) Despite the benefit of retaining forestland, there are also costs. Timber activities such as logging and forest road construction can adversely affect aquatic habitat,(fn8) for example, by reducing habitat complexity.(fn9)

In the late 1980s, stakeholders from industry, government, and conservation groups in Washington State turned to negotiation as the procedure for finding an appropriate balance between a robust forestry industry and healthy forest habitat.(fn10) An alternative to competitive lobbying and court cases, negotiations began to shape policies regarding the management of forestlands.(fn11) In 1996, however, several events caused stakeholders to reevaluate the negotiated policies. At that time, the federal government listed several species of Pacific salmon under the Endangered Species Act (ESA),(fn12) and included 660 Washington stream segments on a Clean Water Act (CWA)(fn13) list of waterbodies with documented water quality problems.(fn14) Again turning to negotiation in lieu of political wrangling and protracted litigation, representatives from Northwest tribes, state and federal agencies, the timber industry, and environmental groups convened to devise a plan to protect aquatic species and their forest habitat.(fn15)

The talks led to the amendment of statutes and regulations governing timber activities in Washington, known as Forest Practices Rules.(fn16) The new rules were designed to provide better protection for aquatic species and riparian habitat, while providing landowners and agencies a predictable and consistent regulatory system.(fn17) Because regulatory complexity and uncertainty can drive up the cost of forestry operations,(fn18) a critical foundation of the comprehensive new program was a guarantee that abiding by the new regulations would satisfy federal requirements for protecting aquatic species and preserving water quality under the ESA and CWA.(fn19) The strategy for obtaining this guarantee was to seek assurances(fn20) from federal agencies that timber activities conducted in accordance with the Forest Practices Rules would satisfy the applicable provisions of the ESA and the CWA.(fn21)

To meet the requirements of the ESA, the state applied for and was issued a fifty-year Incidental Take Permit (ITP).(fn22) This permit allows applicants to take(fn23) endangered or threatened species if such taking is incidental to an otherwise lawful activity.(fn24) For example, an otherwise lawful timber harvest may cause significant erosion of soils into a forest waterbody.(fn25) This sedimentation can impair aquatic species' behavioral patterns; in other words, such sedimentation may constitute a take.(fn26) But such an activity is allowable under a valid ITP; if the federal agency reviewing a permit application finds that several criteria are met- including sufficient minimization and mitigation measures-an ITP must be issued.(fn27) Upon finding that the Washington Forest Practices Rules were expected to minimize and mitigate impacts on endangered and threatened fish species, federal agencies issued an ITP to the state.(fn28) The permit extends to all parties engaged in timber activities pursuant to Washington Forest Practices Rules.(fn29)

To meet the requirements of the CWA, state and federal agencies promulgated Clean Water Act Assurances (CWA Assurances).(fn30) These CWA Assurances stipulate that compliance with Washington Forest Practices Rules is a means of meeting the requirements of the CWA with regard to nonpoint source pollution.(fn31) In short, on the assumption that the new rules would improve water quality, the CWA Assurances exempt forest waterbodies from the standard regulatory process required for waterbodies that do not meet water quality standards.(fn32)

This regulatory structure remains in force today, and the rules governing timber activities in Washington continue to provide a framework for compliance with the two federal statutes. There is, however, a statutory collision between the ESA and the CWA in this Washington context: while the ESA permits the incidental taking of protected species,(fn33) the CWA does not contain such a provision. In fact, the CWA specifically requires that existing water quality be maintained.(fn34) Washington water quality standards-modeled after the CWA-are similarly restrictive.(fn35) In particular, the propagation and protection of aquatic life is a critical aspect of the measure of water quality.(fn36) Specific water quality criteria such as acceptable levels of turbidity and dissolved oxygen have been adopted to achieve this goal.(fn37) Unlike under the ESA, the take of aquatic species-for example, through the deterioration of aquatic habitat-is not permitted under state and federal water quality laws.(fn38)

This Comment argues that while agencies may permit the take of aquatic species under the ESA, such permission is prima facie evidence that state and federal antidegradation laws(fn39) are being violated. in other words, the take of aquatic species is a degradation of water quality. Moreover, neither state nor federal agencies have the authority to exempt Washington timber activities from the CWA. Finally, because the assurances disrupt the statutorily prescribed process for achieving water quality standards, they violate section 303 of the CWA.(fn40)

Part I begins with a brief history of the Washington Forest Practices Rules, first explaining how timber activities can adversely affect healthy habitat conditions and next describing how the rules were developed in response to concerns over degraded habitat. Part II provides a detailed summary of the relationship between the Forest Practices Rules-which are designed to minimize and mitigate adverse effects of timber activities-and the ESA on the one hand and the CWA on the other. Finally, Part III highlights the tension that has arisen between the ESA and the CWA in terms of Washington's regulatory scheme, addressing the legal consequences of providing assurances under the CWA. It contends that, in light of the ITP, the CWA Assurances must be revoked and the regulatory processes established by the CWA restored in order to comply with the requirements of state and federal water quality laws.

I. CURRENT WASHINGTON FOREST PRACTICES RULES ARE THE RESULT OF EFFORTS TO ACHIEVE A BALANCE BETWEEN ENVIRONMENTAL PROTECTION AND A SUSTAINABLE TIMBER INDUSTRY

Timber activities are highly regulated in...