Article by Erik Smith. Published on Friday, August 05, 2011 EST.
Environmentalists Win a Court Battle to Require Clean-Water Permits, and Industry Fears Another Tool to Shut Down Logging
By Erik Smith
Staff writer/ Washington State Wire
OLYMPIA, Aug. 5.—A new kind of spotted owl is winging its way to the Pacific Northwest, and it is causing the timber industry to tremble.
In what is fast becoming this region’s hottest environmental battle of the year, timber interests are turning to Congress to block stiff new federal permit requirements for logging roads. Last year the 9th Circuit Court of Appeals ruled that the federal Clean Water Act ought to regulate forest roads the same way it does sewage treatment plants. It was a major victory for the Oregon-based Northwest Environmental Defense Fund, which filed the case in 2006. Environmental groups call it a logical extension of federal law that aims to protect water quality, based on science.
But it’s hard to blame the timber industry for being nervous. Whatever the legal justification for the new permits, the industry says the new requirement could be used to shut down timber operations on private land, just like the Endangered Species Act was used to close down the bulk of the national forests west of the Cascades some 20 years ago. And the effect could reach further. The ruling affects all forest land holdings, public and private, large and small, and it applies to all 11 western states that are covered by the 9th Circuit, from Canada to Mexico.
The alarm bells started going off in May, when the 9th Circuit declined to rehear the case. Two weeks ago bills were introduced in Congress that would effectively overturn the court ruling. Last week Oregon Gov. John Kitzhaber, one of the greenest political figures in the region, called for a Supreme Court review of the decision. And timber interests are pulling out the stops, making their case on the Internet and in every public forum available. It’s not about fixing culvert pipes and drainage ditches, they say, but about opening the door to a morass of litigation from every green group in the Northwest. Seems like no one has forgotten the spotted owl.
A Matter of Muddy Water
If you haven’t heard about this one yet, it’s probably because the big plays so far have been overshadowed by the big congressional wrangle over the deficit. While Democrats and Republicans were at each other’s throats over federal spending, there was a bit of bipartisanship in Congress that went all but unnoticed. A band of lawmakers, mainly from this corner of the country, introduced legislation in the House and Senate that would specifically exempt forest land from the type of regulation contemplated by the court decision. House Republicans have inserted similar language in their budget bill for the Environmental Protection Agency.
The court ruling overturned 34 years of EPA decision-making that held forest land isn’t subject to the sort of “point-source” permit requirements that govern factories and utilities and other direct sources of water pollution. Runoff from forest roads – a matter of muddy water, really – until now has been considered “non-point” pollution. So states have been allowed to regulate forest activities in a somewhat looser fashion, watershed by watershed. A decade ago Washington imposed what large landowners say are the most stringent forest land-use requirements in the country. They’ve already spent millions mapping forest roads and diverting road drainage from streams to the forest floor.
But here’s the problem. If the ruling is allowed to stand, anyone who seeks a state permit to harvest logs will have to obtain new clean-water permits for the logging roads they will use. The effect is the same, but it means a new level of detail work. Timber operations will have to demonstrate that each culvert pipe and drainage ditch does not unduly clog streams with sediment, and they’ll have to monitor and measure each one of them. It’s more than a paperwork headache, the industry says – the Clean Water Act allows third parties to sue timber companies for noncompliance, giving environmental groups a wedge to shut down logging operations.
Everyone in the business is convinced that’s what will happen. It’s not really about keeping silt out of streams, says Cindy Mitchell of the Washington Forest Protection Association. It’s about giving environmental groups a hammer. “All of a sudden private lands are exposed to the same sort of a citizen lawsuit that the federal lands are exposed to,” she said. “We can’t afford to have that kind of risk for no appreciable gain.”
Memories Run Deep
It’s a situation that can’t help but recall the spotted owl situation of 20 years ago. In that case, the listing of the northern spotted owl as an endangered species triggered a wave of litigation from environmental groups. Yet it wasn’t so much about protecting the owl – the goal was to curtail logging in national forests. And the tactic worked. Logging was halted for three years; restrictions ultimately cut the national-forest harvest by 98 percent in Washington and by 84 percent across the owl’s three-state range. The rules plunged timber communities into a depression that lingers to this day.
And it helps explain the bipartisan alarm in Congress. It’s probably no surprise that the bills are sponsored by Republicans. The Senate bill was introduced by Mike Crapo of Idaho and the House measure by Jaime Herrera Beutler of Washington. But the remarkable thing about the effort is its support from Democrats normally aligned with the environmental community. Oregon’s Ron Wyden offered a few impassioned remarks on the Senate floor when the bill was introduced July 14:
“Where will the 120,000 people in Oregon who make their living on private forest land go when private lands experience the same gridlock as their federal-land counterparts? How will small woodlot owners in Oregon – mostly mom and pop investments – survive when subjected to federal regulation and lawsuits for the first time in our state’s history? How many millions of acres of private shareholder-owned forest land will be converted to non-agricultural purposes when companies are no longer able to carry out needed forest management?”
Speed Limits and Stop Signs
The fears are wildly exaggerated, says Paul Kampmeier of the Seattle-based Northwest Environmental Law Center, which litigated the case. Clean-water permits have been required of other industries for nearly 40 years. Once stormwater runoff became a major concern in the early ’90s, state and local governments had to obtain permits when designing roadways. Why should the logging industry be any different? He points to precedents over more than three decades he says made the court’s decision inevitable.
“Third-party enforcement of the Clean Water Act has been a part of the act since 1972, and the economy hasn’t ground to a halt,” he says. “Every single industry, person or entity that has to get a clean water permit is subject to third-party enforcement, but it is not stopping bridges being built, it is not stopping aircraft manufacturing, it is not stopping mining, it is not stopping landfills, it is not stopping construction – so why would it stop logging? I think what you’re hearing from industry representatives are legitimate concerns, but they’re overblown. I think that it is a lot of hyperbole and rhetoric that doesn’t really fit the facts.”
What the permit requirements will do is to impose “speed limits and stop signs” on the logging industry regarding discharges of muddy water into streams and waterways, he says. Numerous studies have cited sediment as a big problem for endangered and threatened salmon and trout species, and it was a key factor in the court’s decision. “We think we have science and evidence and facts and the history of the Clean Water Act program on our side,” he says.
But after the five years it took to get to this stage, Kampmeier admits it is a bit disconcerting to see Congress working to undo it all with a bill. It’s up to the states to implement the rules – give them a chance to make them work, he says. “Let these guys take a crack at it. I mean, we put a man on the moon, right? I am pretty confident that if we get the smart guys in the room and let them work on the problem, they will come with a solution that is manageable and effective.”
What About the Little Guy?
Even if it really is about better-designed forest roads, large timber companies say it won’t be easy to comply. The Clean Water Act permit process was designed for factories and plants with perhaps a couple of points of discharge, not for companies that have installed thousands of culvert pipes and drainage ditches across hundreds of thousands of acres. Monitoring them all will be a nightmare, and it certainly won’t be cheap, says Adrian Miller of Longview Timber, which owns 650,000 acres of private forest land in Oregon and Washington.
“The ruling really isn’t about whether landowners are adequately protecting streams from sediment input,” he says. “It really has to do with sort of adding this additional permitting layer. And certainly some environmental groups, I would presume, would take advantage of another permit on the books as a vehicle to challenge timber operations more generally, as opposed to really managing the environmental concerns.”
Patti Case of Green Diamond Timber notes that her company, another large landholder with 320,000 acres in Washington, already has been spending millions to upgrade roads under the existing state rules. She calls the new permit requirement “ludicrous,” but the saving grace is that her company is large enough to have a staff devoted to regulatory compliance. “We’ve already got the biologists, we’ve got the engineers, we’ve got the permit writers. It is a burden on us, but it is a bigger burden on the small forest landowner. When you’re trying to harvest a few trees, it is really a sad state of affairs.”
That raises an interesting point about Washington’s timber industry. Private landholdings are immense – some 7.8 million acres. But about half the land is held by smaller landholders, with a few thousand acres or less. They face the same rules, but they don’t have the same economies of scale. Rick Dunning, executive director of the Washington Farm Forestry Association, still grouses about the thousand bucks he had to pay a professional forester to help him prepare a timber harvest permit under the existing state rules. “If you add one more [rule] on top of it, it just keeps piling it on, and eventually people will say enough is enough,” he says. “I predict that someday our children are going to look at our changed landscape and decry what we have done.”Your support matters.
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