Washington Law Review


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

March 01, 2013 | 88 Wash.L.Rev. 683

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.

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