Clean water act under assault

The Clean Water Act is under attack, from all sides it seems. With a rare (these days anyway) bipartisan bill in July, Senators Crapo (R-ID), Risch (R-ID), Wyden (D-OR), and Begich (D-AK) introduced the “Silviculture Regulatory Consistency Act” to amend the Clean Water Act (CWA) to exempt forest roads from permitting requirements. While this bill is Wildlands CPR’s primary concern, there are at least two other bills making their way through Congress that would also roll back the CWA. In March the House passed, with a 2/3 majority, HR872: the Reducing Regulatory Burdens Act of 2011, to change permitting for aerial spraying. And in May, the House introduced the Clean Water Cooperative Federalism Act, HR2018, which would give the states primacy over the federal government regarding implementation of the CWA.

HR872 and the Silviculture Regulatory Consistency Act are both aimed at limiting what types of pollutants will be regulated through the permitting process. HR872 would deregulate the spraying of pesticides and herbicides since they are,  theoretically, regulated through other means. But HR2018 is a completely different species. Providing states with the final say in how the CWA is implemented could set water quality back decades as states race to the bottom and slash regulation to attract industry. Unfortunately decisions related to water in one state have downstream implications — thus a strong argument for keeping the CWA as is.

But let’s focus in on the Silviculture Regulatory Consistency Act, S1369. First, S1369 is not unique, the House has both introduced a companion bill (HR2541) and attached a rider to their Interior Appropriations bill that would similarly exempt silvicultural activities from permitting under the Clean Water Act. While the House Appropriations bill is currently in limbo, riders on either the House or Senate side are more likely to pass than a stand-alone bill, so the riders are likely a bigger threat at the moment.

These bills and riders are legislative attempts to overturn the recent NEDC v. Brown decision issued by the Ninth Circuit Court of Appeals. That decision found that the silvicultural exemption to the CWA should not apply to logging roads — thus requiring that logging roads receive permits to discharge pollutants into streams and other water bodies. The court is right. After all, the EPA considers sedimentation from forestry activities as one of the top five sources of sediment to streams in the western United States. The court decision wouldn’t stop stream sedimentation, but it would require that roads, as sediment sources, be regulated and monitored under the CWA. Then, if it turns out that a specific road is too problematic over time, additional mitigation might be required.

Under the status quo that existed prior to this court decision, best management practices (BMPs) at the state level were the primary tool for limiting road
sedimentation into streams. Opponents of the NEDC v. Brown decision argue that BMPs alone are enough to protect streams. But if this were true, then why are so many streams listed as impaired? (For more on stream impairment see maps and text on p. 5 of the Road-RIPorter 16.2.) Unfortunately, BMPs are not adequate to protect water quality from the impact of logging roads. First, BMPs have only limited enforceability. Second, BMPs do not apply to all of the different mechanisms through which roads cause sedimentation. For a longer explanation, including numerous additional strengths and weaknesses of BMPs, click here.

In truth however, it’s not the BMPs, permitting, monitoring or even mitigation that the timber industry is concerned about. They’re worried that environmental activists will now use the Clean Water Act to stop timber sales. Check out this quote from Senator Wyden’s statement upon introducing the legislation:

“If this decision is allowed to stand, every use of forest roads will require permitting and will therefore be subject to challenge by citizen lawsuits. This will not only overburden  andowners and managers in 9th Circuit states by adding significant compliance and permitting costs, it will create an opportunity for administrative appeal and litigation every time a permit is approved.”

His overall statement includes so many misunderstandings and exaggerations that it’s hard to know where to begin. First, every use of forest roads will not require permitting, and general permitting options appear to be available. Second, the decision appears to be limited to “active log hauling roads.” And third, the citizen suit provisions in the CWA require significant evidence of actual violations, which require citizens to collect data proving the extent of the sediment pollution. The CWA is a substantive bill, as opposed to the National Environmental Policy Act (NEPA), which is procedural. Citizens concerned with ogging road impacts will have to prove that impact if they want to bring a challenge under the CWA. In addition, the CWA includes a 60-day “notice of intent to sue” provision. This 60-day period gives a landowner the opportunity to correct any problems before litigation is even possible. Because of this, it’s highly unlikely that the NEDC v. Brown decision will unleash a hurricane of litigation. Instead of running from an imagined threat, why not give the EPA and the states a chance to implement a permitting process before deciding out of hand that it is untenable?

Wyden goes on to imply that this one court decision alone could destroy the Oregon timber industry and cost the state 120,000 jobs, which is ridiculous on its face. It seems, however, that the timber industry has done an excellent job fear-mongering in the halls of Congress to overturn this important and valuable court decision. They’ve even put their top guns on the job, bringing former undersecretary of Agriculture Mark Rey in to lobby for S1396.

And the pro-timber lobby isn’t worried about gloating over the introduction of the bill. I found the following sentence in the National Alliance of Forest Owners press release on the bill particularly revealing:

“The legislation corrects a Ninth Circuit Court of Appeals’ decision (NEDC v. Brown, Docket Number CV-06-01270-GMK) that struck down EPA’s Clean Water Act regulation for forest roads.”

The legislation (S1369) doesn’t correct the decision. It overturns it, pure and simple. The decision is correct. S1369 changes the law so that the decision cannot be implemented.

The legislation offered by both the House and Senate will not just overturn the Ninth Circuit decision. It will actually go beyond that by exempting all  silvicultural practices from permitting (except dredge and fill permitting, which requires different permits). Thus numerous practices that currently require permits to reduce stream sedimentation would, if either the rider or the bill pass, be allowed to operate without permits. Too bad Wyden didn’t comment on the effects that will have on municipal drinking supply and aquatic habitat in his statement.

Americans clearly care about clean water, especially drinking water, but also clean water for fishing, recreation, agriculture and more. So, I don’t understand (but I will probably never understand the mysterious ways of Capitol Hill) why Congress is aggressively attacking the Clean Water Act through the multiple bills now in play. More importantly, where are the champions who will stand up for just the opposite — preserving and protecting clean water for all Americans?