Prevent legal quagmire for timber industry

Prevent legal quagmire for timber industry

By The Oregonian Editorial Board 
on December 05, 2012 at 5:47 PM, updated December 06, 2012 at 4:36 PM

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AP Photo/Don Ryan 

The nation's timber industry experienced a low moment before the high court on Monday when a last minute action by the Environmental Protection Agencycomplicated an effort to clarify a provision of the Clean Water Act. We wouldn't be surprised if the industry's lawyers and representatives downed a few drinks that evening while contemplating the possibility that Congress might soon be their best avenue for relief. 

The point of clarificationinvolves ditches and culverts that drain runoff, often muddy, from logging roads. Does the Clean Water Act consider these to be point sources of pollution, as if they carried toxic goo from factories, and require the appropriate permits? The EPA historically has not taken this view, thereby sparing foresters not only the significant burden of applying for such permits – the number of which would be huge – but also the inevitable challenges from environmental groups. 

Last year, however, the 9th Circuit Court of Appeals laid a glue trap at the feet of the timber industry by ruling, as environmentalists requested, that the Clean Water Act doesn't say what the EPA says it does. Timber interests appealed, and on Monday the Supreme Court held oral arguments ... sort of. 

Problem was, the EPA had promulgated a rule just days earlier exempting logging roads from the permit requirement at issue. Ostensibly, this gives the timber industry exactly what it wants. In reality, however, the issue is far from settled. Rather than providing clarity, the new rule could create a legal "quagmire," says Dave Tenny, president and CEO of the National Alliance of Forest Owners. 

The Supreme Court may now punt rather than ruling on the merits in the case, Tenny says. Environmental groups will respond by challenging the EPA's new rule in court, and the legal wrangling, once again, will go on and on. 

Enter Congress. If the Supreme Court does, in fact, give the case the brush-off, Congress should act quickly on very targeted legislation introduced in both the House and Senate. The companion bills enjoy bipartisan support, including that of Rep. Greg Walden, R-Ore., Rep. Kurt Schrader, D-Ore., and Sen. Ron Wyden, D-Ore. Their passage would simply provide firm legal footing for long-standing EPA policy governing logging runoff. 

This legislation barely moves the needle on the controversy meter, and it would provide great relief to an important industry in Oregon and many other states. It deserves prompt passage.

U.S. Supreme Court may punt on Oregon logging road pollution case

U.S. Supreme Court may punt on Oregon logging road pollution case

By Scott Learn, The Oregonian 
on December 03, 2012 at 5:43 PM, updated December 03, 2012 at 9:31 PM

Ross William Hamilton, The Oregonian

The U.S. Supreme Court may decide to punt on an Oregon logging road pollution case that has already bounced through the federal courts since 2006, justices indicated today, a move that could spawn years of additional litigation. 
The justices' comments came after the Environmental Protection Agency issued a new rule Friday clarifying that polluted run-off from logging roads shouldn't be treated like "point source" run-off from factories and feedlots under the Clean Water Act. 

EPA's new rule was intended to be timber-industry friendly, directly contradicting a 2010 decision by the 9th Circuit Court of Appeals that the Supreme Court had decided to review. 

Instead, the change could end up prompting the court to decline to judge the case, leaving the 9th Circuit's decision in place for now or prompting a second round of lawsuits over the new rule. 

EPA's 11th-hour rule change "surprised" the justices, Chief Justice John Roberts said. Instead of discussing the substance of the case during oral arguments today, the justices focused on whether or not they should even consider it. 

Timber industry officials nationwide are hoping for a clear win in the Supreme Court. The underlying lawsuit says EPA is incorrectly interpreting the text of the Clean Water Act, as passed by Congress, so an EPA rule change may not resolve the legal issue. 

The 9th Circuit concluded that the text of the Clean Water Act indicates that loggers in western states, even on private lands, need stormwater permits for active logging roads that drain to streams through pipes, ditches and culverts. 

Timber groups say permits would stall logging, create regulatory chaos and foment a spate of lawsuits from environmental groups. State laws, including Oregon's Forest Practices Act, already require best management practices for logging roads, they note. 

The Portland-based Northwest Environmental Defense Center, which brought the original lawsuit in 2006, says permits would prompt better tracking of pollution and more road improvements. Sediment runoff from logging roads can harm salmon listed under the Endangered Species Act and other fish. 

Attorney Timothy Bishop, speaking for the timber industry and the state of Oregon, spent most of his time Monday arguing that the court should still review the case. 

"What we would like to do is to get sorted out once and for all here an argument that otherwise would drag through the courts for the next five or six years," he said, according to the court's transcript. 

Jeffrey Fisher, representing NEDC, said the justices should dismiss the case, deferring it to lower courts to study the issues raised by the new rule. 

The Supreme Court may signal soon how it intends to proceed. If it decides to consider the case, a decision might come by next spring. 

Meantime, Congress could prevent future lawsuits by amending the Clean Water Act to make it clear that logging roads don't require permits. U.S. Sen. Ron Wyden, D-Oregon, has been among those favoring that approach. 

-- Scott Learn; Twitter: @slearn1 

Logging roads are regulated to protect water, fish

Logging roads are regulated to protect water, fish
The Oregonian

Published: Saturday, August 18, 2012, 5:00 AM

 By Guest Columnist 

View full sizeJeff Barnard/Associated PressA helicopter ferries a log to a landing in the Rogue River-Siskiyou National Forest near Selma, Ore., on Sept. 20, 2006.

By Bob Luoto 

I am an Oregon logger, and so were my dad and grandfather. My son is, too. 

My college degree is in political science, but in the end, I decided to keep up the family tradition and run my own business offering services to forest landowners who harvest timber from their private lands. That includes landowners who own as few as 50 acres or as many as 50,000. It doesn't matter whose land it is; we follow the law and take pride in doing it right. 

I was relieved when the U.S. Supreme Court said in June that it would review an earlier ruling by the 9th U.S. Circuit Court of Appeals on a lawsuit brought against the state of Oregon by an environmental group. By accepting the case, the high court will likely settle the issue of whether logging roads will be regulated as a point source of pollution, the same as factories or sewage treatment plants, or as a nonpoint source under current regulations, which have been in effect for 35 years. These practices are outlined in the Oregon Forest Practices Act. 

Good water quality is paramount. In Oregon, the water from our forests is cleaner than from any other land use. Had the 9th Circuit's decision stood unchallenged, it could have created an entirely new set of unnecessary and costly regulatory requirements to fix something that isn't broken. 

Today's forestry isn't the same as that practiced by my grandfather, or even my dad. Since their day, there have been many changes in regulations involving forest practices. In the past, poorly constructed roads and improper maintenance delivered sediment to streams. Today, modern road siting, engineering, construction methods and drainage control have greatly reduced the problems from new roads. And landowners are going back to older roads to upgrade stream-crossing structures, replace culverts and even decommission unused roads. 

Oregon's best management practices cover nearly every aspect of road construction and use. They've changed over time as new science became available. Landowners must maintain fish passage, design stream crossings to pass 50-year storm events and stop operating during extremely wet weather. New roads must be sited away from streams and waterways, generally up to midslope or ridgetop areas. Ditches must intercept water running off forest roads and divert it to the forest floor, where it can be filtered by the soil. At harvest, logs must be hoisted over streams. Landowners must leave forested buffers alongside fish-bearing streams and those used for domestic water supply. They must replant. 

The laws and rules have changed, and are changing, for the better. But at some point, more laws, more rules -- and especially more process -- don't help. They just cost more money. 

Because I drive over these roads practically every day, I know logging roads, and I know how much they've changed. Oregon has a good system -- one of the best -- and it has proved its ability to adapt over time. Let's hope the Supreme Court overturns the lower court's decision. 

Bob Luoto is the co-owner of Cross & Crown Logging, Trucking and Cutting in Carlton and is the board chairman for the Sustainable Forestry Initiative.