Update on Vitter provision that will endanger the ivory-billed woodpecker's habitat

The legislation (S.728) should come up for debate and a vote sometime in the next several weeks, i.e., sometime in the current session of Congress. The committee that considered the legislation before it was sent to the floor gave Vitter's amendment a general thumbs down, but it is inserted into popular coastal restoration legislation, and may still pass on the Senate floor. Action is required to prevent passage of Vitter's provision.

Pressure should be applied to Senators to make sure the Vitter provision does not survive passage of S.728.

Sen. David Vitter (R-LA) introduced language into coastal restoration legislation (S.728) that would allow logging companies to develop valuable wetland habitat and cut down precious cypress trees at will. The Water Resources Development Act of 2005 moved out of committee and is on the calendar for a vote of the full Senate.

Section 2022 of the new legislation, if passed, will modify earlier legislation, the Navigable Waters and Harbors Act of 1899, thereby restricting the authority of the Corps of Engineers to protect areas where cypress grow.

In considering the intent of Section 2022, the Senate Environment and Public Works Committee stated quite plainly that a timber company (unnamed) was the intended beneficiary:

This section was presented as a solution to two perceived local issues. First, a timber harvesting company in Louisiana is interested in having the ability to harvest cypress trees growing below the ordinary high water mark in Louisiana without obtaining a section 10 permit. Second, based on the amendment summary provided, the experience of the timber company raised concern among some that the Corps would seek to extend its jurisdiction under section 10 to private property inundated by a flooding event.

The timber company is interested in harvesting cypress trees growing below the ordinary high water mark. In order to reach these trees, they will need to construct a road. Section 10 prohibits the construction of such structures in navigable waters without a permit. Therefore, under normal circumstances the timber company would apply to the Corps for a permit. Should the permit be granted, cypress trees that currently protect the coast of Louisiana from erosion would be harvested. The Corps indicates that it would likely grant a permit with some conditions designed to mitigate the environmental impact of the construction of the road. The timber company in question has not applied for a permit and is instead seeking an exemption from the requirements of section 10.

The committee generally criticized changing Section 10, reporting that the effect would be deleterious to the protection of the public interest:

Under the conditions of this section, the Corps would only be allowed to consider the safe transit of maritime traffic rather than the entire public interest when issuing permits for activities such as construction of piers, wharfs, breakwaters, bulkheads, jetties, weirs, transmission lines, and work such as dredging or disposal of dredged material, or excavation, filling, or other modifications to navigable waters. This eliminates huge numbers of activities from regulation that would normally be covered by section 10 because of impacts to the environment, national security, homeland security, the speed rather than the safe transit of maritime traffic, or any other element of the public interest. For example, in coastal Louisiana, the Corps would be unable to issue a section 10 permit for construction or activities that would increase the speed of the erosion of Louisiana's coastline.

The Committee reported that Vitter contradicted earlier statements he made in defense of wetlands, since his provision would make it more difficult to regulate activities on wetlands (emphasis added):

By so severely restricting the scope of the activities that would require a section 10 permit, this section limits the number of activities that would be subject to the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Clean Water Act (CWA), and other statutes whose applicability is triggered by the section 10 permit process. In addition, in cases where the CWA section 404 does not apply for whatever reason, this section eliminates the potential application of section 10 to provide wetlands protection. This contradicts the intent of the amendment as described by Senator Vitter at the Business Meeting where he indicated that should the amendment have any negative effects on wetlands, he would withdraw it from consideration.

The committee concluded that the Vitter provision should be removed from S.728:

...this section has extensive unintended consequences. Although it is clear that there is no effect of the amendment on the definition of navigable waters under the Clean Water Act, there are impacts on the Corps' regulatory authority as described above. We look forward to the opportunity to work with its sponsor prior to floor consideration of this bill to resolve these issues.

More on this legislation:

Water Resources Development Act of 2005 (S.728):

A bill to provide for the consideration and development of water and related resources, to authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States, and for other purposes.

Section 2022 of the Water Resources Development Act:

Section 10 of the Navigable Waters and Harbors Act is amended by adding at the end the following:

Nothing in this section shall be construed as to provide for the regulation of activities or structures on private property, unless the Secretary, in consultation with the Secretary of the department in which the Coast Guard is operating, determines that such activity would pose a threat to the safe transit of maritime traffic.

S.728 Sponsor:
Sen Bond, Christopher S. [MO] (introduced 4/6/2005)

Co-sponsors:
Sen Cochran, Thad [MS]
Sen Coleman, Norm [MN]
Sen Cornyn, John [TX]
Sen Domenici, Pete V. [NM]
Sen Durbin, Richard [IL]
Sen Grassley, Chuck [IA]
Sen Harkin, Tom [IA]
Sen Inhofe, James M. [OK]
Sen Isakson, Johnny [GA]
Sen Landrieu, Mary L. [LA]
Sen Murkowski, Lisa [AK]
Sen Obama, Barack [IL]
Sen Talent, Jim [MO]
Sen Thune, John [SD]
Sen Vitter, David [LA]
Sen Voinovich, George V. [OH]
Sen Warner, John [VA]

Committees:
Senate Environment and Public Works

Senate Reports:
109-61

Latest Major Action:
4/26/2005 Placed on Senate Legislative Calendar under General Orders. Calendar No. 93.

My earlier post on the Vitter provision:
Vitter to kill ivory-billed woodpecker once and for all