The Clean Water Act & Forests: What You Need To Know

The Clean Water Act (CWA) is in the news again. From what WOTUS means, to what it means for forests, we’ve got the answers you’re looking for. Read on to learn more.

How did the Clean Water Act regulations come to be?

We created the Clean Water Act in a time of environmental crisis. It was a time when the Cuyahoga River was burning and our skies were cloudy with smog. The Clean Water Act of 1972 was a great start for our drinking water. Our legislators were focused on protecting water quality, and that’s what it does best.

Unfortunately it’s not a be-all-end-all for protection. The Clean Water Act protects “navigable waters” in the US. It also prevents the destruction of permanent wetlands without a permit. But not all waters in the United States are “navigable.” There are also big exceptions for forestry and ongoing agricultural activities.

What is the “Waters of the US” (WOTUS) definition and why does it matter?

WOTUS, “Waters of the US”, is an important part of the Clean Water Act of 1972. It took decades of litigation in district courts to finally fully define WOTUS. It is a piece of text within the Clean Water Act that decides which wetlands and waters deserve protection…and which don’t.

The last three political administrations have tweaked the WOTUS definition. Environmental organizations like Dogwood get people like you involved in these changes. We ask you to submit public comments, join protests, call your representatives. Without you, our wetlands will be turned into parking lots. 

Photo by Claudio Schwarz

Now there is a call for public comments that ends February 7 (more info below). There will continue to be more opportunities to comment because President Biden is trying to undo the damage that President Trump inflicted on the CWA.

Is it the Environmental Protection Agency or the Army Corps in charge of the CWA?

The answer is: Both. The Army Corps are in charge of the day-to-day operations within CWA regulations: issuing and reviewing permits, violations, and other tasks. Then the Environmental Protection Agency (EPA) is in charge of issuing guidelines and clarifications around how to implement the rule. It’s confusing, yes, but it’s been like that for decades.

Because of this collaboration, you’ll see the EPA, Army Corps of Engineers (ACE), or both on rulemaking efforts and litigation. In general, though, if you’re looking for a permit, you’ll need to go to ACE, not the EPA.

Can the Clean Water Act regulations protect forests?

In many places, there are rivers, streams, and wetlands that fall under the protection of the CWA because they run through or near forests. That means the CWA has the potential to protect forests because of their nearness to the water. However, there is a big loophole when it comes to protecting forests with the CWA.

When this legislation was written, the authors carved out a big exemption for things like logging, road construction, and agricultural activities like pesticide application, constructing ponds, and planting or harvesting with heavy machinery.

In other words, if there’s a wetland downstream of regular farming activities – it gets zero protection. If there’s a wetland between a paved road and a forest and the owner wants to trade trees for cash – all bets are off.

Why is logging exempt from the Clean Water Act regulations?

The most likely reason is money. For decades, large forest product companies have lobbied for big exemptions from environmental regulations. They’re flush with cash and will use that money to protect logging wherever and whenever they choose.

Unfortunately, even “sustainable” logging practices come with risks to aquatic life, rare birds and mammals, and other species. Forest roads built for logging have effects that last for generations inside the ecosystem. Voluntary rules and best practices are, in reality, the bare minimum required for protecting water quality, minimizing vegetative disturbance, and preventing damage to adjacent wetlands and rivers.

The US is a hotspot for logging

The US is the world’s largest consumer and producer of wood products.

Enviva wood pellet biomass facility in Northampton, NC

These wood products are extracted mostly from the US South, from Virginia south to Florida and west to Texas. Some, like building materials, can be considered necessary. Others, like single-use cups and dirty wood pellets being passed off as “green” energy, are not. Constantly cutting and clearing our forests for these wood products means that we build big logging roads through both wetlands and forests.

Understanding the rate and scale of forest destruction in the United States doesn’t take much. If you ask any middle or high school student, “How old can trees get?”, they’ll tell you that trees can be hundreds of years old. Why then are over half of the forest stands in the US South less than 40 years old?

It’s because the South has been turned from beautiful native forests into rows upon rows of fast-growing pine plantations. Where ancient cypress once stood, now we have pine trees toppled in increasingly frequent storms and hurricanes. In North Carolina alone, over 200,000 acres of forests are logged every year. That’s over 400 football fields a day of forest destruction. Logging is the number one cause of carbon emissions from US forests – five times more than carbon emissions from fires, drought, and insect damage combined.

How logging impacts water quality and critical habitat

There are decades of peer-reviewed research about the impacts of logging on water quality. Logging destroys soil. The soil is exposed to full sunlight, it’s compressed, and it’s more likely to break apart under pressure. Dry and compressed soil doesn’t clean or absorb water the way that it should. It’s like trying to use a block of salt like a sponge.

When it rains, this soil doesn’t absorb any water and can even break apart under the water pressure. This causes sedimentation in nearby waterways. Sedimentation can ruin drinking water and can let harmful algal blooms flourish.

Another issue with logging is the “temporary” roads installed with modern logging. They need a way to get their machinery into the forest. Unfortunately, the effects of temporary roads, even if they’re no longer used, last for decades or more.

How logging affects threatened or endangered species

Did you know that some threatened and endangered species rely on intact forests for their survival? Before I joined Dogwood Alliance, I became one of the world’s experts on a rare butterfly, the West Virginia White Butterfly. Widespread logging nearly wiped out this rare insect at the turn of the 20th century.

A West Virginia White butterfly, Pieris virginiensis, rests on a hand.

Butterflies are not the only animals that logging affects. Sedimentation from logging can ruin high quality habitats in the aquatic environment, including places where fish, amphibians, and reptiles make their homes. The South is one of the world’s hotspots for amphibian diversity, and every time we log, we put those treasures at risk.

Best Management Practices are the bare minimum for forests

The industry’s solution to the impacts of logging on water quality is called “Best Management Practices” (BMPs) – voluntary, state-by-state guidelines on how to log and minimize impacts on water quality. These rules are better than nothing, but the strength and effectiveness of the protections vary widely.

The fact is that there are no substantive, legally binding, high penalty rules on logging in the US South. If you own land outright, you can probably clearcut it. No need for a permit, little need to concern yourself. Even on state and federal lands, it’s surprisingly easy to clearcut for revenue, especially if it’s justified with misleading arguments of habitat restoration or wildfire prevention.

Pesticide application near wetlands and water supply

In addition to the physical impacts of logging, there are also chemical and biological effects to consider. Many landowners and farmers will use pesticides and herbicides to limit the number of pests and weeds on their property. These uses are for normal farming and other land management, so they’re completely exempt from Army Corps or EPA oversight.

forest river with stones on shores at sunset

Many people, especially in the US South, rely on natural forests and water sources for their drinking supply. In some states, over half of residents rely on well water, which draws groundwater from nearby surface water sources. In areas of heavy land management or agriculture, these residents are likely dealing with polluted water supplies.

Does the Clean Water Act protect all wetlands?

Under this legislation, if what you’re planning to do on a piece of land will have a potential impact on nearby water, you must get a permit from the Army Corps to proceed. Permits will allow impacts or destruction to proceed, but often require some sort of offsetting or mitigation. For example, pollution controls might be installed, or new wetlands might be built.

Protecting total land areas of wetlands

You’d think that permitting is the solution to our problems, but it’s really not. There is no consideration for scale or cumulative impacts during the permitting process for a single project. The Army Corps and the EPA are simply not required to consider cumulative impacts. As a result, there are no easy answers to the questions that matter: Are we losing wetlands because of the CWA? Are we creating wetlands to replace the ones that new developments destroyed? Are the ecosystems shifting as we lose forested wetlands and gain ponds and open waters?

Some scientists have discovered troubling things. One study out of Oregon and Washington found that there was a net loss of wetlands despite permits mandating the creation of compensatory wetlands; they also found that the types of wetlands being created were not the same type as those being lost. There are similar patterns across the country, despite little documentation and follow-up.

Protecting water quality with the CWA

The CWA can only do so much to protect water quality. Since the CWA only applies to navigable waters, and excludes two major sources of pollution, it’s not a magic bullet for water quality. After all, the Clean Water Act makes no restrictions on any logging activities; only impacts new agricultural activities, and harm still occurs even when the process is completed and permits are issued. How’s that for effective policy on clean water?

What can we do to strengthen protections for forests and wetlands?

Luckily, we live in a democracy where change is possible. The CWA may well have reached its limit in terms of potential impact. In other words, the CWA is simply not enough to protect public water supply intake, habitat quality, and navigable waters in the US. We need to do more. Here’s the best thing you can do right now to protect forests and wetlands in the United States:

ACT NOW: Demand Congress protect our wetland forests & the communities who rely on them.

Join the Dogwood email list to find out about future opportunities to protect our water, wetlands, and forests.

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