Supreme Court to Decide Fate of Pollution Controls for Timber Industry; EPA and Congress Try to Preempt Courts

by Nicholas Vidargas

October 10, 2012

Imagine the ecosystem in which salmon evolved and thrived in the Northwest.  As the region’s celebrated rain falls through old-growth forest, it is filtered through duff as it makes its way to one of thousands of pristine streams.  It is in those cold, clear waters that salmon begin their lives among rock and pebble, the product of their parents’ long journey from the sea, a journey they too will make in years to come. 

But in modern times, those salmon that survive their first years – avoiding predators, traversing past dams and through pollution, travelling the Pacific coast in search of food – often return to streams that are unrecognizable from just a few years prior.  The problem is that when the fall rains arrive, the runoff is no longer filtered through forest and duff, but falls on bare, logged hillsides and logging roads and is often channeled through culverts directly into the rivers and streams.  That once-unfiltered runoff is now full of sediment pounded down into a fine powder by a constant stream of heavy logging trucks.  Meanwhile, at the exact same time that the rains start to wash sediment into streams, salmon begin their journey upstream from the ocean, drawn by instinct and evolution to the place of their birth to spawn and (sometimes) die.  That sediment, channeled in large quantities into the water, can smother eggs, scrape gills, and interfere with feeding. 

Last year the Ninth Circuit Court of Appeals denied a rehearing en banc to review their landmark 2010 decision that runoff from logging roads are “discharges” under the Clean Water Act and therefore require permits.  In that case, NEDC v. Brown, the Ninth Circuit held that timber operations are liable under the Clean Water Act (CWA) for the in-stream damage caused by sediment-laden runoff from their logging and access roads.  After some excellent legal work by Portland’s CRAG Law Center and Lewis and Clark Law School’s Northwest Environmental Defense Center, the court found that polluted runoff from logging roads, both private and public, is subject to regulation under the CWA and therefore requires a permit under the National Pollutant Discharge Elimination System (NPDES).  The impact of the decision could mean that logging road runoff is finally controlled, providing a boost to endangered and threatened salmon recovery.

When Congress passed the CWA in 1972, EPA promulgated regulations that exempted several classes of point sources from the Act – including timber activities, confined animal feeding operations, and irrigation return flows – based on the notion that regulation of such sources would be administratively or technically infeasible.  But just a few years later, in NRDC v. Costle, the Court of Appeals for the District of Columbia disagreed with that argument and held that EPA lacks the authority for such sweeping actions, and instead may only shape regulations not inconsistent with the Act. 

After Costle, EPA revised the so-called “Silvicultural Rule” (40 CFR 122.27(b)) which exempts from NDPES permitting requirements the “natural runoff” from timber operations, including “surface drainage” and “road construction and maintenance.”  Instead of a full class exemption, the rule defined point sources and excluded certain activities from which there is “natural runoff.”  EPA again argued that the administrative difficulty of permitting for logging roads rendered wholesale application of the NPDES program “infeasible.”

Many years later, NEDC and Crag challenged the Silvicultural Rule, presenting a case that the use of ditches and culverts in the forest road system transforms “natural runoff” into point source effluent because the runoff (and the large volumes of sediment that comes with it) is collected and channeled before discharge into streams and rivers.  The court agreed.  It rejected the interpretation of the Oregon State Board of Forestry defendants, and held that once water is channeled and controlled, it becomes a point source and is no longer natural runoff.  Natural means natural, the court effectively said.

The implications of the Ninth Circuit’s ruling are significant.  Logging activities are one of the worst contributors to the decline of pacific salmon and the degradation of their habitat.  Sedimentation from logging roads, in the words of the Ninth Circuit, “adversely affects fish . . . by smothering eggs, reducing oxygen levels, interfering with feeding, and burying insects that provide food.”  Requiring NPDES permits for the runoff from these activities would be a major step toward restoring salmon habitat and helping the species recover.  

The Supreme Court granted certiorari to the timber and State forestry defendants and has scheduled oral arguments for December 3.  If the Court upholds the Ninth Circuit’s ruling, one of the last major holes in CWA regulation will finally be plugged, promising substantial improvements in water quality in rivers and streams that are exposed to the runoff from logging operations.

But Supreme Court review is not the end of the story, unfortunately.  During the summer of 2011, several western and southern senators – including Democrat Ron Wyden of Oregon and Republican Mike Crapo of Utah – introduced the Silviculture Regulatory Consistency Act in an attempt to undo the Ninth Circuit’s opinion.  The bill, which was also introduced in the House, would exempt logging-related activities from NPDES jurisdiction.  Prompted by industry scare-tactics, the senators claim that requiring NPDES permits for logging roads could expose virtually every logging project to citizen suits and bring western logging to a halt.  This is an absurd claim.  Citizen suits are not ripe until a NPDES permit is violated – which requires a great deal of evidence to establish – and 60-day notice has been served, giving a permit violator the opportunity to cure a violation before litigation can even commence.

And yet, fearing that their bills were not enough to assuage their timber industry benefactors, and unwilling to wait for committee review of these bills, House Republicans forced a tangentially-related rider into last year’s omnibus spending bill prohibiting the EPA from issuing NPDES permits for logging roads, overriding the Ninth Circuit decision.  The omnibus spending bill preempted EPA action only through the end of fiscal year 2012, but Congress effectively extended the prohibition until March 2013 in the recently passed continuing resolution.

Today, the Senate bill sits in committee gathering cosponsors from timber-friendly senators on both sides of the aisle; the House companion bill was reported out of committee in August.  However, the mere existence of the provision in the spending bill will make it all the easier for Wyden and Crapo’s bill to gain traction.  Agricultural runoff is already exempt from the CWA.  Continuing the exemption for logging roads as well is not good policy for our waters.

In the West, more than half of all salmon runs are now threatened or endangered, thanks to decades of unmitigated harm to their habitat from logging, water withdrawals, dams, and development.  After years of escaping regulation, the Ninth Circuit properly found that the timber industry’s immunity from the CWA is unacceptable.  If allowed to stand, NEDC v. Brown will hold the industry accountable for serious impacts on clean water that have escaped scrutiny for too long.  Instead of working to protect all of the natural resources of their home states through reasonable regulation, many members of Congress from both parties have been willing to sacrifice the nation’s waters, endangered species, and even commercial fishermen, in order to give another handout to an extractive industry.

Unfortunately, EPA has joined the gang in working to limit the impact of the Ninth Circuit’s ruling.  The agency has long defined point sources so as to exclude logging roads, repeating the mantra that state- and industry-crafted best management practices (BMPs) are more effective.  But salmon continue to suffer, and those BMPs have not proven very effective as cash-strapped states that rely on timber dollars look the other way.

Apparently cowed by congressional and industry pressure, EPA proposed revisions in early September to its Phase I stormwater regulations that would effectively nullify the Ninth Circuit’s ruling.  EPA’s rule change would exempt logging roads from the NPDES program even if they are considered point sources under the CWA.  Importantly, this is precisely the issue before the Supreme Court.  That is, the logging and state forestry defendants in NEDC v. Brown have asked the Supreme Court to determine whether discharges from logging roads can be properly seen as point sources for the purposes of regulating them under the CWA.  EPA’s proposed rule change makes an end run around a potential Supreme Court decision in favor of the salmon.  While EPA has the statutorily granted discretion to do this, its justification is somewhat troublesome.  In 1999, when a similar citizen suit challenged EPA’s Silvicultural Rule, the Ninth Circuit remanded the issue back to EPA to make a determination on whether the CWA requires EPA to regulate forest roads.  In its proposed rule change this year, EPA says it is still reviewing available information pursuant to the Ninth Circuit’s remand in 1999.  If it requires over a decade for the agency to even determine whether it should regulate a source of pollution, perhaps it is time for the judicial branch to make the decision for them.

In the Pacific Northwest, salmon recovery is a big deal.  Last fall, I found myself absorbed in the drama of the largest dam removal project in American history.  Two decades after Congress authorized its removal, the nearly century-old Elwha Dam on Washington’s Olympic Peninsula was carefully dismantled, restoring cold, clean water to a mighty river and bringing back hope that salmon – once 400,000 strong in the Elwha – will return in kind.

The dam removals and logging-road case are some of the most significant developments in years.  This spring, in a surprise even for the biologists that know the species so well, steelhead salmon were seen upriver of where the Elwha dam once stood, instinctively exploring parts of the river that their species had not experienced in over a century.  While EPA and Congress do their best to negate the Ninth Circuit’s decision, let’s hope that, on the 40th anniversary of the CWA, the Supreme Court recognizes the wisdom behind bringing strong federal law to bear on the tangled web of forest roads that continues to harm long-suffering runs of native salmon.

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