Water runoff suit watched in US Supreme Court
EPA permitting fees for logging operations could prove financially disastrous

By James Ronald Skains
Journal Correspondent

In early December of 2012, the US Supreme Court heard first round oral arguments on the controversial "Rain-water Run-off Forest Roads Case'' that had been appealed to the high court from the 9th Federal Circuit Court of Appeals in Oregon.

At issue is the question of whether the US Environmental Protection Agency (EPA) should continue its current policy of considering forest land water runoff as if it were water running off farmland, or should the forest land water runoff be in the same classification as water coming out of a pipe at a factory.

Currently water runoff from farmland does not require an EPA permit nor does water runoff from forestland. However, the case now before the US Supreme Court was first brought to Federal Court by a small environmental group from Portland, Oregon known as the Northwest Environmental Defense Center (NEDC).

In 2006, the NEDC sued the Oregon Department of Forestry over roads on the Tillamook State Forest that drain directly into salmon streams. Part of their argument is that the logging roads during timber harvest season, creates a lot of muddy water filled with sediment that goes into these streams known as breeding waters for salmon.

The sediment from the muddy water in the streams is ingested by the fish, clogging their gills and ultimately causing death or disease dramatically reducing salmon breeding, according to the NEDC. Mike Riskedahl, director of the NEDC, has been quoted as saying:

"We brought this suit out of a perceived sense of unfairness. Every other industrial sector across the country has to get this sort of permit for storm water discharge."

The Supreme Court Litigation Clinic at Stanford Law School is arguing the case for NEDC. The lead attorney is Jeffrey Fisher, professor of law at Stanford Law School. Fisher has been quoted as saying in reference to this case:

"The Clean Water Act requires industrial sector activity to get a permit for storm water that runs through ditches, pipes and channels. Industrial logging operations with all the heavy machinery that takes place on lands at issues here is, we think, pretty clearly industrial in nature. That is the end of the case, right there."

The NEDC lost its case in US District Court in Portland, Oregon, however, they received a favorable ruling on appeal in the 9th US Circuit Court of appeals in San Francisco. From that point, the Oregon Department of Forestry along with forest industry giant Georgia Pacific-West appealed the 9th Circuit ruling to the US Supreme Court. Oregon and GP-West were joined in the appeal by 31 other timber producing states.

For many years, the forest industry has operated their logging operation under very stringent Best Management Practices (BMP's) which were designed to be environmentally friendly. Very few legitimate complaints have occurred since the Forest industry began to diligently police itself more than two decades ago. In fact, according to recently published scientific data collected on the streams in the Tillamook State Forest, salmon breeding and fish population are at all time highs.

This forestland storm water lawsuit, which has monumental financial implications for the forest industry, has taken some strange twists and turns since May of 2012. At that time, the EPA formally proposed to revise storm water regulations to say that logging roads don't need the point-source pollution permits that factories must get.

Even with the 9th Circuit Ruling requiring logging road storm water permits, the EPA has gone ahead in finalizing its storm water regulations while a court ruling they allegedly don't endorse is before the Supreme Court. The Obama administration even petitioned the US Supreme Court not to take up the NEDC Clean Water Act suit.

The administration argued in their brief that Congress and the EPA were already taking steps to correct the situation. Congress did enact a temporary continuation of the status quo.

However, the US Forest industry has quickly moved to protect their interest in this NEDC lawsuit. The National Alliance of Forest Owners (NAFO) commissioned studies which conclude new permits that would cost landowners and logging operators nationwide upwards of $1.1 billion in administrative casts.

"The EPA has been absolutely clear since 1976 in its rules and briefs explaining storm water runoff and what it has done," timber industry attorney Timothy Bishop has been quoted as saying about the EPA actions. "Never once has it required a permit for discharges from forest service roads. It has been absolutely clear in its actions in the last 40 years that storm water permits for forest land is a bad idea."

"This lawsuit is a very serious matter for the logging industry nationwide,'' Travis Taylor, President of the American Logging Council, told the Piney Woods Journal. "We are monitoring this situation very carefully. We have had conference calls lately with the Associated Oregon Loggers Council who stay up to date, minute by minute, of what's happening with the lawsuit."

"There are two main things that disturb me about this situation," Taylor acknowledged. "First, are the financial burdens that the forestry industry would be under if this ruling stands. It could be the tipping point that could cause many more loggers to go out of business."

"The second point is that the situation seems to be developing into a political football," Taylor explained. "Apparently, the EPA, Congress, the Obama administration and the forest industry are on one side of the fence, and the Environmentalists and the Federal Courts on the other side. To me that is an odd combination of people on the side of the forest industry,'' Taylor admitted. "The EPA in the last 40 years has been set on expanding regulations, not reducing regulations.''

"On the other hand, we know that if the Supreme Court rules in favor of the environmentalists, storm water permits on forest land would be immediately required,'' Taylor emphasized. "I know that Congress and the Obama administration could go through the process of passing new laws exempting the logging industry from these permits."

"But then a whole new round of lawsuits from the environmentalist challenging the new laws would probably happen," Taylor said. "The logging industry would then be in a state of turmoil for several more years until those suits could be settled. I'll tell you how serious this lawsuit really is to us," Taylor stated. "The Louisiana Loggers Council and the Louisiana Forestry Association have contributed $10,000 to help with legal fees on this lawsuit."

Forbes media posted an article on the internet on November 29, 2012 with this headline: "A Supremely Important Decision about America's logging Industry."

Forbes followed its headline with this paragraph: "On December 3, the US Supreme Court will consider who is best suited to set national environmental policy; the experienced scientists and regulators at the Environmental Protection Agency or activist trial lawyers."

US Senator Ron Wydem, a Democrat from Oregon, has been quoted as warning: "Upholding the 9th Circuit decision will bury private, state and tribal forest lands in a wave of tsunami like litigation."

Apparently many forest industry stakeholders feel that even if permits were issued for logging operation, the permits themselves would be vulnerable to environmental activist lawsuits. The state of Washington Forestry Department estimates that it will need one permit per mile on its 55,000 miles of forest roads if the 9th Circuit ruling is upheld.

Cost of permits could reach up to $3,000 per permit.

One question that the Journal could not find in its research for this article was: "What would be the difference in the water quality of storm water runoff under a permit and the storm water runoff without a permit?" The Journal could find no definite answer other than the hundreds of millions of dollars in permit fees involved.

Another question for which the Journal was not able to ascertain an answer, was the difference in storm water runoff from forestland and farm land. Apparently the science and logic is on the side of the forest industry in this lawsuit. However, there will be anxious days in the forest industry until this controversy is resolved.