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Timber!

news_1New 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.

Comments (6)Add Comment
...
written by A reader, November 09, 2010
I don't see how this article portrays the timber industry negatively. They point out a lot of good things that Big Creek does. Also, Good Times has covered the impacts of leaky septic tanks in the mountains.
To unidentified trouble
written by Deane Rimerman, November 09, 2010
No shortage in irony that someone who named themselves "Troubled" is not willing to identify themselves by their real name!

In truth many of us, including myself, have worked in every major watershed in the Santa Cruz Mountains planting trees, a well as monitoring harvest operations. Not only are we more educated than "Troubled" but we're not afraid to use our real name! And for decades now many of us have seen with our own eyes how corrupt and deceptive the timber industry is fiscally motivated to be!

And please know that the timber industry has done everything to make our forests unhealthy and lacking in biodiversity and nothing to protect it other than to lie and say they really do care and they really do protect it! What's worse the regulators who enforce the laws aren't willing to interfere with a landowners right to over-exploit their forest in the name of "business."

Yet the laws and the science say that in the name of fisheries... In the name of water quality... In the name of biodiversity... all of these names as defined by qualified peer-reviewed scientific experts say the loggers are wrong!

Point is: loggers chronically lie to themselves and to us, it's fundamental to how they earn paycheck!

If loggers told the truth about what they do, or if they could even comprehend that truth, they'd have to look for a real job that doesn't deprive future generations of far more meaningful jobs.

With this in mind is it any wonder that "Troubled" won't use his real name?

Be well, Deane


...
written by Troubled, November 09, 2010
Have you been following the issue of illegal timber going to places like Europe and China? This illegal timber is coming from... the rainforests among other places. Timber companies like Big Creek are portrayed as heinous evil-doers. When in fact they are providing a renewable resource in a sustainable (or certainly more sustainable than the global illegal timber market) fashion.

An unfortunate fact is that many people have opinions about this topic who've never even seen a logging site in the Santa Cruz Mountains or understand the issue from anything other than an emotional and inflamed perspective. They haven't seen the volume of growth in a carefully managed forest. They haven't seen how closely water courses are monitored or what is done to manage erosion on a logging job. (Hint: a lot more than on many road association roads in the mountains).

Nobody talks about how all those illegal septic systems are impacting the watershed. Nor are they talking about how the network of dirt roads and driveways reaching to all those mountain hideaways (also a lot of grading there) impacts the watershed. Instead, it's all about the logging. When, in fact, logging is a really well regulated drop in the bucket of the massive amount of human impact in these mountains.

Along the whole "think globally, act locally" lines I'd work on supporting safe and sustainable timber harvesting in these mountains and elsewhere. There is a massive global demand for timber. I'd much rather see an attempt to meet that demand from sustainably managed forests. The alternative is, for me, much more unpalatable.
...
written by Ed Solomon , November 05, 2010
There was much controversy over Big Creek's attempt to weaken regulations for salmon this year and last. Their paper on native salmon territories is quite frankly one of the biggest jokes in fisheries science. I'm surprised Big Creek in the article at all. I wouldn't view them as a credible source.
...
written by Reader , November 03, 2010
She quotes you as saying "we don't know what the implications of the ruling might be," so it looks like the writer got things correct. You say she misquoted you, but then you repeat exactly what she put in your quote. Logging companies shouldn't get to turn articles into PR devices anyway. And from the looks of your posting, it seems you tried.
Communications Director
written by Bob Berlage, November 03, 2010
For the record, I never told the reporter that "the ruling may not lead to dramatic improvements in the Santa Cruz Mountains." That is an unfortunate misquote. What I did say was that we don't know what the implications of the ruling might be, a comment that the reporter did get right. There is quite a bit of relevant information missing from this online story, which makes me wonder whether the print version is more complete and accurate. I certainly hope this is the case. I can be contacted at (831) 457-5026 if anyone wishes to know what I did tell the reporter.

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