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Riverkeepers win lawsuit

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POSTED: June 20, 2008 5:00 a.m.
U.S. District Court Judge B. Avant Edenfield has handed down a decision that will protect Georgia's coast from an abuse of tree-harvesting operations and further shield forested wetlands throughout the United States.
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 regulations because the harvest was part of an ongoing tree farming operation. Judge Edenfield ruled that the proposed harvest was not a part of an ongoing tree farming operation and therefore not exempt from clean water regulations.
"This is a great win, not just for the Ogeechee watershed, but for forested wetlands everywhere," said OCRK executive director and riverkeeper Chandra Brown. "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." The area protected by OCRK includes Liberty and Bryan counties.
 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 have resulted 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. Although Cypress Lake had not previously served as a tree-farming site, nor was there any indication that it would in the future, the Corps did not require the owner to seek a Clean Water Act permit before cutting the trees.
“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 in the dispute.
In his 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 subsequently was reached with the landowner to avoid harvesting the area until the lawsuit was resolved.
 

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