Court ruling endangers timber harvesting on state and private lands

by John in Oregon

“[T]he 9th U.S. Circuit Court of Appeals in San Francisco will put federal courts into the business of managing every acre of privately owned timberland in America. Farmers beware. You could be next.”

Is Bull Run an Industrial Polluter?

What seems like a provocative headline is the natural extension of a sweeping court ruling now on appeal to the U.S. Supreme Court.

Iconic in nature, and earning a listing in Wikipedia, the Bull Run Watershed was established in the 1890s.  Bull Run is a large forested area on the flanks of Mt. Hood, which collects precipitation in the form of rain and snow.  A series of dams, reservoirs, channels, support roads, and pipelines deliver product to the northern Willamette valley, principally the Portland Metro area.

Oregonians are justifiably proud of the natural, pure and high quality drinking water produced at Bull Run.  Indeed, the State of Oregon has in place by state law and regulatory authority an extensive system to insure the water quality of streams and rivers is protected on all state and privately owned lands.

So how does pure drinking water become industrial pollution? That takes the magic of a federal court ruling which, as Attorney John Hinderaker points out , “[i]f this ruling is upheld, the EPA will be charged with regulating the runoff of uncontaminated rain water from vast areas of public and private land.”

Owing to a virtual total absence of media coverage, a recap of the background history is necessary.  The only legacy media article found was published in the Oregonian months prior to the lawsuit.

The Orgonian article indirectly refers to Oregon’s extensive environmental forestry laws and regulations governing state and private forest lands:

State forest practice rules require that runoff from roads be directed away from rivers and streams so the muddy water can be filtered through the soil of the forest floor. The state has spent millions of dollars on road systems across the Tillamook and Clatsop state forests to meet that standard, said Keith Mills, forest engineering coordinator with the Department of Forestry.

(Snip)

Steve Zika, president of Hampton Tree Farms, one of the companies targeted, said Oregon forests lead the nation on environmental standards.  “I’d love to match the water in our forests with water around Portland or any other area,” he said.

While the Oregonian article does not tell us that by longstanding administrative practice the EPA doesn’t issue storm water runoff pollution permits, the article does provide some legal information.  The Oregonian highlights the Northwest Environmental Defense Center (NEDC) “an environmental law group based at Lewis & Clark College”.  The article continues:

The Lewis & Clark group, relying heavily on volunteer law students, has amassed water tests and video footage it says prove polluted water is streaming off roads and into Coast Range rivers.

Executive Director Mark Riskedahl said the tests and footage provide evidence of violations. He said he hopes the state and companies will negotiate a solution within the next two months, otherwise the groups will file a lawsuit.

According to the article volunteer law students conducted scientific studies, which found violations.  The article did not indicate whether NEDC had taken steps to encourage prosecution for violations or present evidence that suggests that State regulations are inadequate, need update, or violate any water quality standards.  The article did not indicate what steps, if any, the NEDC took to differentiate between silt near roads and that produced by normal erosion or natural landslides.

In 2007 the Northwest Environmental Defense Center filed a federal lawsuit claiming the Oregon State Forester was in violation for failure to obtain EPA industrial pollution discharge permits for ditches, culverts, and channels that receive stormwater runoff on State of Oregon timberlands.

In defense, the state forester argued several points.  First that the EPA by longstanding administrative decision does not require or issue pollution permits for roads, ditches, culverts, and channels.  Second that soil suspended in flowing water is natural in a Forrest environment.  Further they argued, farming is not industrial.  The defense additionally argued that the clean water act expressly exempted farm activity and that court precedent requires great latitude in the EPA administrative process.  Both U.S. Supreme Court and various circuit court rulings provided precedent.

The District Court held for the Oregon State Forester in dismissing the case.

Upon appeal the 9th Circuit Court reversed the District Court, holding that forestry is not exempt, that the EPA has no latitude, and that storm water is industrial pollution.  In its ruling the 9th Circuit held that ditches, culverts, and channels are point source pollution, and further require National Pollutant Discharge Elimination System (NPDES) pollution discharge permits.

The 9th Circuit ruling casts a wide net applicable to virtually any road, ditch, culvert, or channel.  Such a wide net leads to the obvious and bizarre conclusion that Bull Run with its roads, dams, reservoirs, culverts and pipelines is an industrial polluter.

However the real impact goes beyond Bull Run.  As noted in the Washington Times, if upheld:

[T]he 9th U.S. Circuit Court of Appeals in San Francisco will put federal courts into the business of managing every acre of privately owned timberland in America. Farmers beware. You could be next.

Fortunately, despite the lack of news coverage, the 9th Circuit ruling has not gone unnoticed, as Georgia-Pacific West and others have appealed to the U.S. Supreme Court. Additionally 26 states have intervened to ask the Supreme Court to review the case.

Twenty-six states joined in asking the Supreme Court Oct. 17 to overturn a ruling requiring regulators to treat logging roads as “point sources” of pollution whenever stormwater runoff from the roads is channeled

(snip)

The states said a decision by the U.S. Court of Appeals for the Ninth Circuit disregarded the intent of Congress and failed to respect the Environmental Protection Agency’s reasonable interpretation of the Clean Water Act.

The States and private land owners are worried that:

“There are hundreds of millions of privately and publicly owned acres of forest land in the United States, with millions of miles of forest roads having some form of water conveyance, or channeling, associated with them,” the amicus brief said.

The Washington Times identifies the core issue of the ruling.

The new administrative burdens the 9th Circuit decision puts on landowners and federal and state government is staggering. The U.S. Forest Service reports there are about 378,000 road miles in our national forests and that it will need about 400,000 permits. By the most conservative estimate, adding in state and private forests nearly doubles that number. Other estimates place the total well into the millions. Simply obtaining the Forest Service’s permits will take 10 years.

Adding BLM administered, state and private lands to the tally and the required pollution discharge permits escalates into the millions.  Millions of permits, millions of hours, and millions of dollars in a system for which any storm water that touches a human built structure is considered industrial pollution.

One has to wonder that if Oregon State forestry rules were inadequate as the NEDC suggests, then the solution would be to correct the State rules.  Simply layering on an additional level of federal permits with massive paperwork requirements will not accomplish that task.  Unless the goal is something other than reducing storm water sediment.

In late breaking news as this article heads to press the Supreme Court “Justices invited the Solicitor General’s office to provide the Court with the federal government’s views on whether timber companies must get a federal permit…”  “The Environmental Protection Agency has previously taken the position that a permit is not needed for that kind of stormwater runoff, but the Ninth Circuit Court has disagreed.”  Justice Stephen G. Breyer is recused in these cases.

The appeal issue arises in two cases: Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West v. Northwest Environmental Defense Center.  The 26 State brief can be found here.

[Ed. note] On a hopeful note, the left-leaning U.S. Ninth Circuit Court of Appeals has more rulings overturned by the U.S. Supreme Court than any of the thirteen U.S. courts of appeals. The U.S. Ninth is “a Circuit whose opinions are so far outside the judicial mainstream that they’re constantly being reversed by the Supreme Court”.