August 4, 2009

Under Section 404 of the Federal Clean Water Act, exemptions are provided for “Normal silviculture” that are “part of an established (i.e., on-going)” operation. The term on-going has been generally interpreted to mean a continued forestry use (not a change in use) that can be supported by on-the-ground observations, activities and other related evidence.

Historically, making these “ongoing determinations” has not been problematic, although there have been exceptions from time to time. Recently however, several controversial cases involving bottomland hardwood and cypress swamps have occurred, where a field determination has been made by the U.S. Army COE and/or the U.S. EPA, then subsequently challenged and overturned in court. While the circumstances in each case have been somewhat unique, the outcome identified a need for some general guidance on the subject.

To that end, a formal request was made by Tom Welborn, EPA Region 4 Branch Chief for Wetlands, Coastal and Oceans, to the SGSF Water Resource Committee in the fall of 2008. Specifically, Mr. Welborn asked the Committee to consider preparing a general guidance document that would assist a field representative in making an accurate “ongoing call” on bottomland hardwood and cypress swamps. Welborn asserted that such a document would be especially useful for regulatory representatives that are generally not familiar with forestry operations, and what should or should not be present on such operations as an indicator of silviculture on these forest types.

The Committee agreed to this request, organized a subcommittee to complete the work and drafted the proposed guidance which was approved by the Southern Group of State Foresters at the summer meeting in 2009. This guidance document was submitted in late June to Mr. Welborn at the EPA Region headquarters in Atlanta.

The information in this guidance document is an attempt to demonstrate that a well managed forest can and will have periods of inactivity.

We hope that the information in this document will be of assistance to landowners, loggers and others interested in the sustainability of our states natural resources.

Linda Casey, RF
State Forester
Alabama Forestry Commission

 - Recommendations to Assist Federal Regulatory Agencies in the Determination of Ongoing Silviculture In
   Bottomland Hardwood and Cypress Swamps