Depaving the Way: Logging Roads and Clean Water Don’t Mix
Nearly a year ago, in August 2010, the Ninth Circuit Court of Appeals issued a major ruling related to logging roads and water quality. The case, NEDC v. Brown, revolved around whether or not the pipes, ditches, and culverts associated with logging roads should be regulated as point sources of pollution under the Clean Water Act. (For an excellent review of the case, see RIPorter 10.3.) In a nutshell, the court found that they should, basing its decision on years of prior law and the text of the Clean Water Act itself. The case has received great attention from the timber industry, Forest Service, lawmakers (especially in Oregon and Washington), the Environmental Protection Agency (EPA), and conservationists.
As a result of this case, the pipes, ditches, and culverts associated with logging roads must now be regulated as point sources under the National Pollutant Discharge Elimination System (NPDES) permitting process. The ruling concluded that NPDES permits are required, and should have always been required, for point-source pollution from logging roads and that the “silviculture exemption” was a misinterpretation of the regulation. On the other hand, the timber industry views this as a huge regulatory burden and they’re pulling out all the stops to try to prevent it. Following the decision, defendants petitioned for en banc review of the case by a full nine-judge panel of the Ninth Circuit. In May 2011, the court rejected that petition while simultaneously issuing a revised opinion upholding the August 2010 decision and clarifying that the issue was properly in front of the court.
When the Ninth Circuit denied the request for en banc review, defendants then asked the Ninth to stay that decision while they considered appealing to the Supreme Court. The Ninth again said no, thus remanding the case back to the District court for a hearing on the merits. That rehearing will determine whether any violations occurred, and identify an appropriate remedy.
In the meantime, the defendants have about 60 days left to appeal to the Supreme Court – and we won’t be surprised if they do so. While the idea of getting the Supreme Court to overturn the case must be enticing to the defendants, the Court only accepts a small number of cases each term, so it is hard to predict whether the Court would even hear the appeal. But appealing to the Supreme Court is only one way to fight the decision; the other method is to get Congress to amend the Clean Water Act or otherwise prevent EPA from developing a permitting process. While the clock continues to run on a Supreme Court appeal, opponents of the ruling have already taken action on the congressional side.
On May 23, 2011, 44 members of the House of Representatives, from both parties, signed a letter to EPA Administrator Lisa Jackson, urging her to “reaffirm that the BMP approach is the correct one for responsible forest management legally, environmentally, and economically by defending the regulations in all appropriate proceedings and by taking the steps necessary to limit the scope of this ruling to the extent possible, particularly in the face of conflicting case law.”
The letter to the EPA argues that Best Management Practices (BMPs) are the appropriate way to protect water quality from logging road impacts. But logging roads are already subject to BMPs, and yet, according to our previous review on this case by attorney Chris Winter: “In 2000, the Environmental Protection Agency found that sediment associated with logging activities was the fifth leading source of water quality impairment to rivers and streams nationwide. Across the West, roads are the leading source of sediment from logging activities.”
The letter to Congress argues repeatedly that BMPs are the best tool for addressing sediment from logging roads. There is no dispute that BMPs are useful and can be effective, but there are a host of reasons why applying BMPs alone does not work. Here are just three:
Our work with the Washington Watershed Restoration Initiative (WWRI) provides a compelling example of why BMPs aren’t sufficient to regulate the effects of logging roads on clean water. For starters, the Legacy Roads and Trails Remediation Program began, in part, because Forest Service logging roads in the state of Washington were not in compliance with minimum Clean Water Act (CWA) standards within the state. In 2000, the Forest Service and the state entered into a Memorandum of Agreement engaging the Forest Service to bring its road system up to minimum CWA standards by 2015. By 2007, the agency had made almost no progress, and they projected that at then-current funding levels it would take 100 years to come into compliance with the standards. BMPs already existed and should have been applied. The reality is that even the Forest Service is not fully in compliance with the BMPs and, even if they were, it is doubtful that this would bring the streams and rivers on FS lands in Washington up to minimum CWA standards. BMPs are neither enforceable, nor do they fully protect or enhance water quality. Legacy Roads and Trails was created in response to this situation with funds dedicated to reclaiming unneeded roads and performing critical maintenance and stormproofing on needed roads. By funding this program, Congress is helping reduce the impacts of national forest roads on water quality, so why wouldn’t they want to enhance that by supporting the EPA in its effort to comply with NEDC v. Brown? Unfortunately, the Congressional letter to the EPA shows quite the opposite approach.
But let’s go back to the heart of the industry’s complaint with the NEDC v. Brown decision. They’re worried that permitting will be overwhelming, cost-prohibitive and burdensome, and they don’t seem to think it will help water quality, either. As quoted in the Congressional letter to the EPA: “Decisions like this regarding the silviculture definition do not further the protection of water quality but rather hasten the conversion of forestland into other uses. As new housing starts remain at their lowest levels in decades, and with forest products markets losing jobs as well, this is hardly the time to impose unnecessary new regulatory burdens.”
But is this really the wrong time to impose new regulations? The EPA has significant experience with CWA permitting options and can develop a system that would provide flexibility to the timber industry while better regulating discharges from logging roads. In the original NEDC v. Brown August 2010 decision, the Court itself tried to head off this argument by stating, “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously.” With this new decision in place, it’s irresponsible and illegal for the EPA to fail to regulate these roads under NPDES. Moreover, this decision allows municipal water suppliers, state and federal land managers, the environmental community, and others interested in improving water quality an excellent opportunity to better regulate, and therefore reduce, the damage being caused by logging roads. The NPDES process also requires reporting, making it easier for the timber industry and regulatory agencies to manage and document how much logging-road-associated sediment is going into streams.
Furthermore, those involved with the case point out the ruling applies to a finite number of timber roads. Under the CWA one needs to demonstrate that a pollutant has been added to a regulated body of water from a point source and that that addition is occurring without a NPDES permit or in violation of such a permit. Hence those roads that have no hydrologic connection to water bodies (e.g. ridge top roads) may not require a permit. Also, logging roads not “associated with an industrial activity,” such as active log hauling, may also be exempt from permitting requirements (whether or not they are causing pollution).
Neither Congress nor the EPA should fall prey to fearmongering by the timber industry. Unfortunately, the rumor is already circulating that some in Congress will move to amend the Clean Water Act in response to this ruling. Will we step forward or backwards when it comes to one of our nation’s most important environmental laws? For EPA and Congress to fail to respond positively to this excellent decision by the Ninth Circuit would be negligent and will result in the continued degradation of water quality for fish, wildlife, and, perhaps most importantly, people.
As a result of this case, the pipes, ditches, and culverts associated with logging roads must now be regulated as point sources under the National Pollutant Discharge Elimination System (NPDES) permitting process. The ruling concluded that NPDES permits are required, and should have always been required, for point-source pollution from logging roads and that the “silviculture exemption” was a misinterpretation of the regulation. On the other hand, the timber industry views this as a huge regulatory burden and they’re pulling out all the stops to try to prevent it. Following the decision, defendants petitioned for en banc review of the case by a full nine-judge panel of the Ninth Circuit. In May 2011, the court rejected that petition while simultaneously issuing a revised opinion upholding the August 2010 decision and clarifying that the issue was properly in front of the court.
When the Ninth Circuit denied the request for en banc review, defendants then asked the Ninth to stay that decision while they considered appealing to the Supreme Court. The Ninth again said no, thus remanding the case back to the District court for a hearing on the merits. That rehearing will determine whether any violations occurred, and identify an appropriate remedy.
In the meantime, the defendants have about 60 days left to appeal to the Supreme Court – and we won’t be surprised if they do so. While the idea of getting the Supreme Court to overturn the case must be enticing to the defendants, the Court only accepts a small number of cases each term, so it is hard to predict whether the Court would even hear the appeal. But appealing to the Supreme Court is only one way to fight the decision; the other method is to get Congress to amend the Clean Water Act or otherwise prevent EPA from developing a permitting process. While the clock continues to run on a Supreme Court appeal, opponents of the ruling have already taken action on the congressional side.
On May 23, 2011, 44 members of the House of Representatives, from both parties, signed a letter to EPA Administrator Lisa Jackson, urging her to “reaffirm that the BMP approach is the correct one for responsible forest management legally, environmentally, and economically by defending the regulations in all appropriate proceedings and by taking the steps necessary to limit the scope of this ruling to the extent possible, particularly in the face of conflicting case law.”
The letter to the EPA argues that Best Management Practices (BMPs) are the appropriate way to protect water quality from logging road impacts. But logging roads are already subject to BMPs, and yet, according to our previous review on this case by attorney Chris Winter: “In 2000, the Environmental Protection Agency found that sediment associated with logging activities was the fifth leading source of water quality impairment to rivers and streams nationwide. Across the West, roads are the leading source of sediment from logging activities.”
The letter to Congress argues repeatedly that BMPs are the best tool for addressing sediment from logging roads. There is no dispute that BMPs are useful and can be effective, but there are a host of reasons why applying BMPs alone does not work. Here are just three:
- Most BMPs associated with logging roads are focused on the location and design of the road itself and do not actually prevent pollutants, like sediment, from entering a stream;
- BMPs are both inconsistently written and inconsistently applied from state to state, and;
- BMPs are rarely enforced, making them a voluntary measure for improving land management on the ground.
Our work with the Washington Watershed Restoration Initiative (WWRI) provides a compelling example of why BMPs aren’t sufficient to regulate the effects of logging roads on clean water. For starters, the Legacy Roads and Trails Remediation Program began, in part, because Forest Service logging roads in the state of Washington were not in compliance with minimum Clean Water Act (CWA) standards within the state. In 2000, the Forest Service and the state entered into a Memorandum of Agreement engaging the Forest Service to bring its road system up to minimum CWA standards by 2015. By 2007, the agency had made almost no progress, and they projected that at then-current funding levels it would take 100 years to come into compliance with the standards. BMPs already existed and should have been applied. The reality is that even the Forest Service is not fully in compliance with the BMPs and, even if they were, it is doubtful that this would bring the streams and rivers on FS lands in Washington up to minimum CWA standards. BMPs are neither enforceable, nor do they fully protect or enhance water quality. Legacy Roads and Trails was created in response to this situation with funds dedicated to reclaiming unneeded roads and performing critical maintenance and stormproofing on needed roads. By funding this program, Congress is helping reduce the impacts of national forest roads on water quality, so why wouldn’t they want to enhance that by supporting the EPA in its effort to comply with NEDC v. Brown? Unfortunately, the Congressional letter to the EPA shows quite the opposite approach.
But let’s go back to the heart of the industry’s complaint with the NEDC v. Brown decision. They’re worried that permitting will be overwhelming, cost-prohibitive and burdensome, and they don’t seem to think it will help water quality, either. As quoted in the Congressional letter to the EPA: “Decisions like this regarding the silviculture definition do not further the protection of water quality but rather hasten the conversion of forestland into other uses. As new housing starts remain at their lowest levels in decades, and with forest products markets losing jobs as well, this is hardly the time to impose unnecessary new regulatory burdens.”
But is this really the wrong time to impose new regulations? The EPA has significant experience with CWA permitting options and can develop a system that would provide flexibility to the timber industry while better regulating discharges from logging roads. In the original NEDC v. Brown August 2010 decision, the Court itself tried to head off this argument by stating, “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously.” With this new decision in place, it’s irresponsible and illegal for the EPA to fail to regulate these roads under NPDES. Moreover, this decision allows municipal water suppliers, state and federal land managers, the environmental community, and others interested in improving water quality an excellent opportunity to better regulate, and therefore reduce, the damage being caused by logging roads. The NPDES process also requires reporting, making it easier for the timber industry and regulatory agencies to manage and document how much logging-road-associated sediment is going into streams.
Furthermore, those involved with the case point out the ruling applies to a finite number of timber roads. Under the CWA one needs to demonstrate that a pollutant has been added to a regulated body of water from a point source and that that addition is occurring without a NPDES permit or in violation of such a permit. Hence those roads that have no hydrologic connection to water bodies (e.g. ridge top roads) may not require a permit. Also, logging roads not “associated with an industrial activity,” such as active log hauling, may also be exempt from permitting requirements (whether or not they are causing pollution).
Neither Congress nor the EPA should fall prey to fearmongering by the timber industry. Unfortunately, the rumor is already circulating that some in Congress will move to amend the Clean Water Act in response to this ruling. Will we step forward or backwards when it comes to one of our nation’s most important environmental laws? For EPA and Congress to fail to respond positively to this excellent decision by the Ninth Circuit would be negligent and will result in the continued degradation of water quality for fish, wildlife, and, perhaps most importantly, people.
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