Do logging roads cause pollution?
The question has both environmentalists and the timber industry anxiously watching what Washington, D.C., will do this spring. And it attracted 160 people to a University of Montana conference debating the subject Thursday.
“This has gone all the way to the Supreme Court and could have far-reaching implications for how we manage our forests,” UM Dean of Forestry Jim Burchfield said. He referred to the Decker v. Northwest Environmental Defense Center lawsuit, in which the 9th U.S. Circuit Court of Appeals recently ruled logging road pollution should be controlled by the federal Clean Water Act. The high court heard oral arguments in the case in December.
Environmentalists claim erosion from logging road drainage systems is hurting endangered salmon spawning streams in Oregon, and argue the Clean Water Act specifically covers point-source pollution from “any pipe, ditch or channel.” Logging roads use all three methods to divert runoff water away from their surfaces.
But the timber industry points to an exemption written by the U.S. Environmental Protection Agency that specifically removes logging roads from Clean Water Act oversight. That classifies the road sediment as “non-point-source” pollution, which the industry handles voluntarily by improving its road construction techniques.
The U.S. Forest Service has about 500,000 miles of forest road on its lands. By comparison, the interstate highway system has 37,000 miles.
All this was fodder for the “Clean Water Act on Trial” conference, which Plum Creek Timber Co. sponsors for UM.
The high court has much more than just a pollution question on its docket, according to UM law professor Michelle Bryan Mudd. The case asks what the definition of “industry” is, because the regulations aren’t clear if a road is part of a regulated industrial process. It also asks who controls whom: Congress and the law it passed, or the EPA and the rule it made to interpret that law?
Chris Winter was the attorney arguing logging roads violated the Clean Water Act. He said the EPA overreached when it exempted forestry practices from federal permitting.
“Congress chose not to write an exemption for the logging industry, the way it did for the agricultural industry,” Winter said.
National Alliance of Forest Owners general counsel Chip Murray saw an opposite picture: The EPA specifically exempted silviculture and forestry activity from its point-source pollution regulations, using its authority to interpret legal wording that Congress left vague.
The case has another problem. In late November, days before it was to go before the Supreme Court, EPA issued a new version of its point-source rule. It affirmed logging roads were exempt from the Clean Water Act. The move caught both the justices and the attorneys by surprise.
That makes it possible for the Supreme Court to drop the matter. George Mathieus of the Montana Department of Environmental Quality said if that happens, the country continues “business as usual as it’s been for the last 30 years.” And business as usual depends on the industry voluntarily following “best management practices” that guide how roads should be built to keep sediment out of streams and rivers.
Those BMPs have been developed over the past 20 years and have scientific proof showing they work, according to Plum Creek Timber Co. hydrologist Brian Sugden. They also have great flexibility to apply to specific areas and geology. For example, road design in Oregon’s steep rainforests is different from Montana’s drier conditions.
If the Supreme Court rules logging roads do fall under the Clean Water Act, those BMPs would still be the main tool for fixing things. But the industry would face much more paperwork and expense from a new permitting system that must be designed, monitored and inspected.
Winters said that could be the only way the general public can hold the industry to account. Currently, he said, there’s no way to challenge a logging project for non-point-source pollution, because the Clean Water Act doesn’t deal with it. And as climate change and other factors put more wild fisheries at risk, keeping mountain streams clear will become increasingly essential.
A permit system would also protect the industry from further lawsuits, Winters said, by showing logging projects were complying with state and federal law. But Forest Service regional hydrologist Bruce Sims noted he’s received warning of several future lawsuits claiming the agency has failed to properly examine logging road water impacts.
The high court should release its opinion by June.