Do logging roads create water pollution, or just carry it?
The question has triggered a case of dueling government branches and left many in the woods, both industry leaders and environmental activists, anxious to see what happens.
“It’s an on-the-ground nightmare,” said Loren Rose of Seeley Lake’s Pyramid Mountain Lumber. “It would bring a lot of things to a screeching halt.”
The federal Clean Water Act specifically says farm and ranch roads are not a “point source” of water pollution and don’t need a special permit for construction or maintenance. Forest roads never got a similar exemption. But for decades, the U.S. Environmental Protection Agency has not considered logging roads a water pollution source.
That started to change last year, when an Oregon lawsuit made it to the 9th U.S. Circuit Court of Appeals and the judges ruled the Clean Water Act should come down hard on logging roads. That case is now headed for the U.S. Supreme Court, which hears oral arguments on Dec. 3.
The Obama administration asked the high court to wait while it had the EPA write a new regulation solving the problem. The EPA released its draft rule Monday, stating that logging roads weren’t a pollution source and didn’t need special permits.
Environmentalists note that rule runs opposite the 9th Circuit’s interpretation of the Clean Water Act. It found that logging roads are engineered to move water (mixed with road sediment) into streams and waterways through culverts, pipes and ditches. That makes them prime candidates for point-source pollution sources that should be more strictly controlled.
The Washington Forest Law Center, which won the Oregon case at the 9th Circuit, argues that those who use the roads also are responsible for the pollution.
“(In the Oregon case) four timber companies are responsible for the discharges because they haul timber on the roads – an industrial activity that grinds up the road surface and creates much of the sediment and other pollutants delivered to rivers and streams – and because their timber sale contracts with the Oregon Department of Forestry obligate them to maintain the roads on which they haul,” the law firm notes on its website. “(The 9th Circuit) issued a unanimous opinion on August 17, 2010 that polluted run-off from logging roads is subject to regulation under the Clean Water Act.”
That argument is already showing up in appeals of logging sales in Idaho, according to Pyramid resource manager Gordy Sanders.
“That’s why 26 or 28 states have weighed in with amicus briefs to the Supreme Court,” Sanders said. “Any road construction, road obliteration, culvert installation or removal would require a specific permit from EPA or DEQ to allow you to do that. It’s a huge, encumbering process that would unfold over time. There’s no simple way to do this.”
Sanders said logging roads currently are overseen by state and county conservation boards, who check for impacts on irrigation, fish populations and erosion.
American Forest Resource Council vice president Ann Forest Burns advised all parties to slow down. AFRC represents timber mill owners in Montana and four Western states and opposes the regulation of logging roads.
“There’s no rush on this,” Forest Burns said. “There’s a moratorium on the (EPA) action through the end of March. So they should wait and see what the justices have to say.
“The real solution to this is for Congress to amend the Clean Water Act, and place a statute exemption for non-point sources,” she added. “We’ve already made so much progress moving toward best management practices and controlling runoff.”
A bill to do that, House Resolution 2541, would prohibit EPA from imposing water pollution permits on logging roads. So along with the Supreme Court and the EPA, all three branches of government are racing to solve the problem first.
Reporter Rob Chaney can be reached at 523-5382 or at email@example.com.