All Carrot and No Stick: Why Washington's Clean Water Act Assurances Violate State and Federal Water Quality Laws
Stiefel, Oliver, Washington Law Review
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.
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 species1 like the iconic salmon, forests also contribute ecosystem services like carbon sequestration.2 In addition, the forestry industry provides jobs and bolsters the regional economy.3 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.4 Uncompromising protection of forests for ecological purposes would threaten the viability of a sustainable forestry industry.5 Concerns about unpredictable regulations weigh heavily in decisions about converting forestland to uses that have greater ecological consequences, like residential development.6 Providing a regulatory climate more likely to keep landowners from converting forestlands thus remains an important objective for all parties.7 Despite the benefit of retaining forestland, there are also costs. Timber activities such as logging and forest road construction can adversely affect aquatic habitat,8 for example, by reducing habitat complexity.9
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.10 An alternative to competitive lobbying and court cases, negotiations began to shape policies regarding the management of forestlands.11 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),12 and included 660 Washington stream segments on a Clean Water Act (CWA)13 list of waterbodies with documented water quality problems.14 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. …