Logging Operations Nationwide May Face Greater Permitting Requirements under New Clean Water Act Ruling

From the October 2010 Forest2Mill newsletter.

On August 17, the federal Ninth Circuit Court of Appeals passed down a ruling that defines rainwater channeled by logging roads into rivers and streams as pollution. As a result of this decision, public and private forest owners and logging companies will be required to obtain permits under the Clean Water Act. As the EPA develops permitting standards and processes, which could take as long as two years, entities that own and operate logging roads will likely be subject to additional costs and lawsuits.

While the current ruling affects only those states in the Ninth Circuit—Oregon, Washington, Arizona, California, Nevada, Idaho, and Montana—many are concerned that the decision could become the standard throughout the country. Once concern is that the decision could become precedent, the basis of similar findings being handed down by other circuits. Another concern is that the EPA will adopt the Ninth Circuit’s ruling as the administrative standard for enforcing the Clean Water Act nationwide.

A third concern is more local, at least for now. Many believe the lawsuit was an attempt to halt or delay an Oregon Board of Forestry management plan to increase logging by 20% in the Tillamook and Clatsop State Forests. Environmental groups, like the Northwest Environmental Defense Center (NEDC) who filed the original lawsuit, believe this increased harvest will result in the clearcutting of an additional 100,000 acres. Tillamook County Commissioner Mark Labhart describes the situation, “I believe [the NEDC’s] intent is and always has been to severely restrict harvesting.”

The Background

The original 2006 lawsuit that led to the Ninth Circuit appeal was brought against Oregon State Forester, Marvin Brown, and the Oregon Board of Forestry. The suit contended that Clean Water Act (CWA) permits were needed for use of two logging roads leading into the Tillamook State Forest due to significant sediment found in rivers downstream of the logging roads. According to the suit, the sediment was adversely affecting fish populations by smothering eggs, reducing oxygen levels, and interfering with feeding.

Traditionally, run off from logging activities has received an exemption from the CWA’s National Pollutant Discharge Elimination System (NPDES) program.  The NPDES program distinguishes between point source pollution discharges and non-point source discharges. According to Section 502 of the CWA, ‘point source’ pollution is defined as, “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit..., from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.”

Since 1976, the EPA’s own Silvicultural Rule has exempted most logging operations from permitting.  According to the EPA's Silvicultural Rule, point sources include “rock crushing, gravel washing, log sorting and log storage facilities operated in conjunction with silvicultural activities, activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff” are considered non-source points of pollution [40 C.F.R., section 122.27(b)(1)].

The NEDC lawsuit, however, argued that because the logging discharges were collected in roadway drainage systems that then emptied into rivers and streams, they should be considered as point source pollution according to the broader definition of the CWA. The Ninth Circuit agreed. In effect, the Court struck down the Silvicultural Rule, stating that logging run-off is still exempt if it is left to run off naturally, but if that run-off is collected in culverts, ditches, etc., it is then redefined as point source pollution.

What’s Next

The Oregon Board of Forestry plans to appeal the Ninth Circuit’s decision, and other industry groups may intercede as well. The American Forest & Paper Association and other interested parties have expressed the intention of filing a motion for an en banc review, which would mean a hearing in front of the entire Ninth Circuit panel of judges, not just the three-member panel that heard the first appeal.