New ruling tightens logging regulations by requiring companies to obtain point source permits
The snake nest of logging roads that curl through the Santa Cruz Mountains could soon be lined with paper from logging permits and the lawsuits that challenge erosion.
Here in the southernmost tip of America’s iconic redwood landscape, old growth cathedrals used to physically block erosive winds, pack soil into hillsides with root clusters, and maintain organic binders in the soil by dropping seeds onto the forest floor.
After the trees were cut, the winter rainstorms carried sediment to the streams. Fish eggs have been smothered by sediment, insects and other foods have been buried, and silt raises temperatures in the cool ponds used by spawning fish.
Sedimentation is arguably the biggest water quality problem in Northern California and through much of the Pacific Northwest, and as mud accumulates in ditches and culverts, logging roads are the primary source of the sediment that flows into streams.
“If you have a piece of land that is intensively logged over time or space, the science is clear that you will see sedimentation. Logging roads are the essence of the problem,” says Paul Kampmeier, an attorney at the Seattle-based Washington Forest Law Center.
This August, Kampmeier won a landmark sedimentation case in the Ninth Circuit Court of Appeals. He represented the Portland-based Northwest Environmental Defense Center (NEDC) against Oregon’s State Forester Marvin Brown. As part of the case, storm water discharges were sampled along logging roads located on state property. Each sample contained significant amounts of sediment.
According to the ruling, logging companies must now seek point source permits for the water discharged from roadways traversed during timber harvests. In the suit, both the property owner and the timber company were named, although it remains unknown who will be obligated to get the permit in the future.
Brown did not return calls, but the defendant reportedly filed a request for an en banc rehearing. Only three judges were involved in the current decision, and if the appeal is granted, an 11-judge panel will hear the case from scratch. If the appeal is granted, the impacts of the case will not be implemented until the case is re-heard.
The case is among the first in history to hold the logging industry accountable to Clean Water Act standards. According to the EPA’s 1976 Silviculture Rule, logging operations are exempt from many Clean Water Act standards, including the criteria for point source permits.
Unlike mines and factories that directly pump pollution into lakes, and must obtain point-source permits, logging companies have only been held responsible for “rock crushing, gravel washing, log sorting [and] log storage facilities,” according to the Silviculture Rule. As far as sedimentation from logging roads, the EPA has traditionally considered the pollution from logging roads “natural runoff,” and thus a non-point source pollutant. According to this interpretation, standards for mitigation and pollution control are lower for logging companies than most other industries.
“Non-point source pollution permits don’t work very well, and it’s only fair that the timber industry has to comply with the same standards everyone else is facing,” says Kampmeier.
The Ninth Circuit Court agreed, and found the Silviculture Rule could not be used to exempt logging companies from point source permits. Using the rule as an exemption is “fatally inconsistent” with the Clean Water Act, which does not suggest water must come from a particular source—either natural or non-natural—in order to require a point source permit, said the Court in their decision. Even if some ditches and culverts might be exempt from permitting requirements, this was not a basis for categorically exempting all natural runoff discharges at logging sites.
Many disputes over sedimentation have focused on state-level permitting standards. But now that the Silviculure Rule has been called into question, logging companies, including those here in Santa Cruz, worry that a new door may open for Clean Water Act suits.
“The industry is already very tightly regulated in California, and even though the suit focuses on logging roads, it calls into question a regulatory structure that has long been afforded to the forest product industry. It set up the terms by which you could proceed without a [point source] permit,” says Bob Berlage, communication director for Big Creek Lumber Company in Santa Cruz County, which has received few environmental lawsuits over its 60 years of operations—none over the Clean Water Act.
Big Creek Lumber Company harvests between 11 and 16 million board feet from local forests each year. It oversees anywhere from 40 to 100 different roads ranging from 600 feet to five miles in length. Many of these roads are not on land the company owns, and the company representatives fear small landowners might bear the brunt of new permitting requirements.
Yet Hamey doesn’t expect much additional work will be needed on roads managed by Big Creek Lumber Company. Big Creek Lumber Company often replaces culverts with bridges, and Hamey says all of the company’s roads meet current regulations.
This is why Berlage believes the ruling may not lead to dramatic improvements in the Santa Cruz Mountains. “We don’t know what the impacts of the suit will be yet, but we already face so many regulations—especially here in the Central Coast where land use faces more regulatory oversight than just about anywhere. Things are very different in Oregon, but here our timber harvest standards are already very rigorous,” says Berlage.
Environmental advocates disagree, and name a laundry list of regional water quality concerns—some stemming from historic and recent logging.
In Santa Cruz, fish like the endangered Coho salmon are on the brink of extinction. Road failures continue to dump sediment into streams needed for habitat, and landslides take out sections of road, and sometimes even houses.
“The argument we are getting from the timber industry is a familiar one. They say we already have strong rules, and therefore don’t need anything more. This is wrong because we have not yet achieved a level of minimal impact, and our watersheds are still being degraded,” says Scott Greacen, of the Arcata, Calif.-based Environmental Protection Information Center (EPIC).
In 2003, EPIC challenged the Pacific Lumber Company’s failure to obtain a permit for its drainage systems in the Bear Creek tributary of the Eel River. At the time, road failures due to blocked culverts and poor maintenance dumped enough sand into the river to form entire sand bars. The case is one of the only other examples of Clean Water Act litigation against logging road sedimentation.
Federal District Court judge Marilyn Patel ruled in favor of EPIC, and found that ditches and channels are indeed point sources. While the win was the first of its kind, no fines were levied against Pacific Lumber. The company filed and lost an appeal, and then declared bankruptcy before damages could be tallied. EPIC’s attorney fees were settled for pennies on the dollar.
“But the case made a clear point: if there is a ditch and a culvert, there’s a point source, which must be addressed,” says Greacen.
NEDC and Kampmeier also hope to seek civil penalties. “If the case stands, we will go back before a district court judge and prove the violations of the Clean Water Act, and require the defendants to pay fines,” says Kampmeier. A win in district court may also mean that Oregon’s State Forester has to fix logging roads, and they may also be liable for attorney’s fees.
Regardless of the outcome, the logging industry in the West will be paying close attention. Ninth Circuit Court Rulings apply to Montana, Idaho, Arizona, Washington, Oregon and California.
written by Deane Rimerman, November 09, 2010
written by Bob Berlage, November 03, 2010
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