U.S. Supreme Court asks Obama Administration to Weigh In on Controversial Clean Water Act Permitting for Logging Roads

WASHINGTON, D.C. December 12, 2011 - The Supreme Court today asked Obama Administration Solicitor General, Donald Verrilli, for the Administration's opinion on a controversial Ninth Circuit Court of Appeals ruling that, if upheld by the Supreme Court, will require every public and private timberland owner in the nation to file for and obtain federal Pollutant Discharge Elimination System permits for every culvert and drainage ditch on their property.
Landowners and attorney's general in 26 states fear that unless reversed by the Supreme Court, the Ninth's ruling will foster a new round of needless litigation by obstructionist environmentalists, making it virtually impossible for landowners to protect and manage their forests, much less construct, maintain or repair vital road and drainage systems.
In its written statement, the Supreme Court addressed two petitions before it, both filed by the Northwest Environmental Defense Center [NEDC], a litigation shop maintained by law students and their professors at Lewis and Clark College in Portland, Oregon.
Paul Kampmeier, a Washington Forest Law Center attorney who is handling the case for NEDC, said the ruling should "remind all stakeholders - including interest members of Congress - that there is an ongoing judicial process for resolving this case." Meanwhile, he added, "timber hauling and logging activities continue polluting salmon and trout streams in northwest Oregon."
But Jim Petersen, co-founder of the non-profit Evergreen Foundation, sees the court's ruling in a different light.
"From the moment the Ninth Circuit ruled in this case last May, I have wondered how it is that loggers and logging trucks are killing salmon and trout but hunters and their pickups don't," Petersen said. "Nor apparently do campers and their trailers or cars filled with picnickers. The point here being that so-called logging roads are also used daily by thousands of people who enjoy the nation's forests. When does a logging road cease to be a logging road and become hunting or a fishing road? I think this is a very important question for the court to consider, especially in national forests, where virtually no logging occurs."
At issue is whether runoff - rainwater - that passes through culverts and drainage ditches is somehow polluted along its journey into nearby streams and rivers. If it is - and the Ninth seems to believe it is - it then falls under the regulatory purview of the EPA and a "point source" permit is required - a requirement landowners fear would open the door to endless and costly environmental litigation.
The Forest Service, which has about 378,000 miles of roads under its 193 million acre jurisdiction, has not said whether it believes the high court should consider the case. In documents filed with the lower court, the agency estimated that if it had obtain point source permits on a road-by-road basis, it would need to obtain more than 400,000 permits, a process it said might take 10 or more years to complete. Even programmatic permits, which the EPA has suggested would resolve the issue, would take several years to obtain.
"Delaying public timber sales for several years through a costly permitting process will threaten the already tenuous operations of sawmills and road and stewardship contractors that provide scarce jobs to support the struggling economies of rural communities," observed Tom Partin, President of the American Forest Resource Association, a trade association that espouses active management of public timberlands in the West. "New investment capital will no longer flow into our industry and job losses that have heretofore been mostly temporary or cyclical will become permanent."
"In an era when government has less money to invest in land management," Partin continued, "we should be using those dollars to control sedimentation and improve forest health, not on applying for and issuing permits that are just pieces of paper that don't do anything to improve the environment."

The Ninth Circuit's controversial ruling upended 35 years of regulatory success, years in which the federal government allowed states to do their own regulating under EPA guidance. The guiding principle was that forestry's various activities, including log hauling, were yielding "non-point source" pollution, meaning there was no practical way to identify the source. Landowners thus controlled runoff by planting vegetation that held back rainwater, and by developing elaborate systems of collecting and routing rainwater through culverts and ditches, reducing the risk of mass flooding following heavy rain events.
Ironically, the Ninth Circuit has now said that these events trigger water pollution the EPA must control. Meanwhile, some observers have wryly noted that returning to the older and cheaper road building system -out-sloping roads and allowing surface run-off to go directly wherever it wanted to go - would comply with the Ninth Circuit decision, despite the fact that it produced far more soil erosion.
In an opinion piece he wrote for the Washington Times (click here), Petersen wrote that the court's ruling means that rain that falls on forests must now be regulated in the same way effluent from sewage treatment plants is regulated.
"Americans who love to hike will find it hard to believe that when they are out walking amid the splendor of their favorite forest they are in fact strolling through toxic industrial sites," Petersen observed. "But in effect that is what the Ninth Circuit has said, and that is why the nation's forest landowners are hoping the Supreme Court will rescue them from this new and astonishing display of legal revisionism and regulatory zeal.
Although the Obama Administration is under no deadline for filing its brief, Solicitor's General usually responds to the Supreme Court's requests within six months. Environmental groups are expected to mount a ferocious campaign designed to build public and congressional support for requiring forest landowners to obtain point source pollution permits from the EPA.
Whether the industry will mount an opposing effort isn't known. But in response to the Supreme Court's decision Congress bought the Obama Administration and its Solicitor General some additional time last night by granting landowners a one year moratorium from the permitting process ordered by the Ninth Circuit.