High Country News: "Oregon ignores logging road runoff, to the peril of native fish"
by Joshua Zaffos
Tillamook State Forest, Oregon -- Chris Winter stands by a dirt road along the South Fork of the Trask River. The scattered clouds pass for a clear spring day in coastal Oregon, where annual precipitation tops 100 inches. Moss-draped red alder and Douglas fir frame the wide channel, where rocks gleam beneath crystalline water. It's idyllic, and it's exactly the opposite of what Winter, a youthful-looking environmental lawyer and co-founder of the Portland-based, nonprofit Crag Law Center, came here to show me.
Back in 2006, he says, "We were out here in the middle of a rainstorm, and it was like, 'Holy crap!' " Culverts sluiced latte-colored sediment into the river from the road and the logging operations it served. The muck clouded long stretches of spawning grounds for the federally threatened coho salmon, possibly smothering fish eggs, scraping adults' gills, and interrupting feeding.
Such events add up to a chronic water-pollution problem across the West, says Winter. Roads that run along streams and steep grades are vulnerable to landslides and drop dirt and crushed gravel into waterways during logging activities. In addition to harming habitat, the debris fouls drinking supplies, alters river channels and flows, and even reaches the ocean, where it contributes to coastal sedimentation problems. The logging companies that create and use these routes, he argues, should be held accountable.
Soon after that memorable downpour, Winter and his colleagues, working on behalf of the water-quality watchdog Northwest Environmental Defense Center, sued the Oregon Department of Forestry and the logging companies for violating the U.S. Clean Water Act within the Tillamook State Forest.
In 2010 and again in 2011, the 9th Circuit Court of Appeals, which handles much of the West, agreed that culverts, ditches and collected logging-road runoff should be regulated by the U.S. Environmental Protection Agency, just like pipelines that carry waste from factories and sewage facilities. If a congressional moratorium hadn't delayed implementation, timber projects using logging roads near rivers would require pollution-discharge permits and have to comply with stricter water-quality standards and more rigorous monitoring, including larger no-cut buffer zones around streams and even route closures.
Timber and forest-products companies -- along with lawmakers, some land managers, and attorneys general from 29 states -- fear enforcement will expose projects to excessive permitting costs and more lawsuits, clobbering a reeling industry. The National Alliance of Forest Owners (NAFO) projected $654 million in annual costs for private forest owners in California, Oregon, Washington, Idaho and Montana. Projects on state and national forests, including fuels reduction and forest health work, would also face new fees and more exhaustive reviews.
In June, at Oregon's request, the U.S. Supreme Court announced that it will review the case this fall, with a final decision expected next summer. Whatever the outcome, Oregon's obstinacy has elevated regional concerns over its forest practices to a national policy issue that will be decided by the courts. Ultimately, the repercussions and costs will ripple across the country. "If Oregon is serious about wanting to retain local control," Winter says, "it would improve its standards."
The 40-year-old Clean Water Act tasks the Environmental Protection Agency with setting water-quality standards and approving pollution-control plans for industries and communities that release wastewater into waterways. But since 1976, the law has exempted forestry's "natural runoff" as "nonpoint source" or dispersed pollution, allowing states to develop their own forestry guidelines to deal with such matters. The trouble, according to Winter and other attorneys, is that court rulings over the decades have contradicted the exemption and considered forest-road runoff as direct, or "point source" pollution, which the EPA is explicitly required to regulate for industries. And because the states and many rural counties rely on timber revenue to fund schools and other public services, he says, they often do a less-than-thorough job dealing with runoff pollution themselves.
Landowners and resource managers typically have a lot of discretion in determining which state forestry practices should be applied and whether they're successful, says fisheries scientist Chris Frissell, who previously worked for the Pacific Rivers Council, a regional conservation group. In Montana, state officials audit projects in the field, a practice that Frissell praises. But even when relatively strict, he adds, the guidelines for monitoring timber projects in the field often don't come into play until projects are under way, too late to prevent harm –– say, from high overall road density, which can harm salmon and other species, or the use of erosion-vulnerable roads. Federal permitting would necessitate a more thorough review process.
Frissell and others say Oregon's environmental protections are much looser than those of surrounding states. And the Tillamook -- with its heavy rains and thick stands of valuable Douglas fir -- is a prime example of serious runoff problems.
As Winter drives up and down the state forest's roads, assessing freshly logged areas, he shows me ditches and swales constructed to divert runoff from streams, and flakes of hay near culverts that filter out dirt. They're part of Oregon's management guidelines, which include parameters for thinning, slash removal, harvest, reforestation, and for how much land should be left unlogged around rivers. But evidence of road washouts and slope erosion is nearly everywhere. "In a flood event, I can pretty much guarantee this road will get taken out -- again," Winter says. And the Oregon Department of Forestry ambiguously says that operators must meet state water-quality standards only "as much as possible."
Environmentalists are quick to point to Washington as a counterexample. In response to the federal Northwest Forest Plan -- a regional detente in the old-growth logging wars to protect the northern spotted owl and other endangered species -- in 2006, the state adopted a habitat conservation plan across 9.3 million acres and 60,000 miles of streams on federal, state, tribal and private lands. The law expanded buffer zones, and established a program to inventory and improve forest roads and culverts, abandoning those that damage streams. But Oregon state officials bailed on similar conservation talks with the federal government. Instead, the state relies on voluntary measures by landowners to protect water quality and river health.
Since the 1990s, both the EPA and the National Marine Fisheries Service have rebuked the state for failing to adequately address road runoff and protect water quality under existing non-point source pollution control programs. "Oregon is stuck in the situation where landowners and managers would prefer to deny there is a problem rather than accept there is a challenge that needs to be met," says Frissell.
Department of Forestry spokesman Kevin Weeks argues that Oregon's programs are focused on outcomes rather than rules, and are working fine. By Oregon's own 2002 accounting, its road-construction rules meet the requirements of the Clean Water Act. Revisions since that study have prohibited forestry operations during storms and the discharge of runoff onto steep slopes, and also required using durable road-surfacing materials to reduce sediment movement into rivers with fish or those that supply drinking water.
Oregon officials and national forestry interests insist the case now before the Supreme Court has always involved more than water quality. "There are folks out there who don't think the timber industry is legitimate, and would like to shut us down" by ratcheting up costs, says Ray Wilkeson, president of the Oregon Forest Industries Council. An analysis compiled by the staff of Rep. Jaime Herrera Beutler, R-Wash., and Rep. Kurt Schrader, D-Ore., estimates the new runoff regulations could cost industry $883 million a year just in the Pacific Northwest. Industry supporters claim that every logging-road culvert would require a permit under the ruling; NAFO figures each would cost operators $1,800 plus annual renewal fees and other legal charges, with smaller forest owners inordinately bearing the burden. Winter and his co-counsel disagree, saying the rules would apply to active logging operations on just 15 to 50 percent of road miles, depending on the forest, and could exempt smaller operations. Still, according to timber proponents, cash-strapped forest owners could be forced to subdivide and sell.
That's not lost on Oregon's politicians: Forestry jobs represent more than half of the manufacturing work in many of the state's rural counties, and the industry contributes $12.6 billion to its economy. Gov. John Kitzhaber and Sen. Ron Wyden, both Democrats who typically win praise from environmental groups, oppose the 9th Circuit's ruling. Wyden cosponsored legislation last summer to overturn the decision, and Congress suspended its implementation through September. The National Association of Counties has joined 29 states in supporting the Supreme Court review. Dave Tenny, NAFO president and a former top official in the U.S. Department of Agriculture, says the system will be an administrative nightmare, especially with budgets so tight: "Those who have joined the lawsuit understand what's at stake."
Caught between the environment and the economy in a tough election year, the Obama administration has scrambled to soften the impacts of the 9th Circuit's ruling while better addressing road runoff pollution. At the same time, it's attempting to forestall what could be an environmentally disastrous High Court decision. In May, the EPA announced it would create new rules based on effective state programs, but exclude industry from the burdensome pollution-discharge permitting that it's most concerned about. Days later, the Justice Department issued a brief arguing that the Supreme Court doesn't need to intervene because the EPA and Congress are already working on solutions. The court –– unusually –– ignored that advice.
Over the last 20 years, the Supreme Court has reviewed as many environmental rulings from the 9th Circuit as from all the other federal circuit courts combined. Writing on the blog Legal Planet this June, University of California, Davis environmental law professor Richard Frank attributed the current faceoff to "longstanding ideological dissonance between the Ninth Circuit and Supreme Court when it comes to environmental law and litigation." Indeed, over the last decade, the Supreme Court has reversed nearly every 9th Circuit environmental opinion that it's reviewed.
Even if they lose, industry supporters could still pressure Congress to more explicitly exclude logging runoff from federal oversight. Environmentalists and scientists could also change tack and sue over how forest-road runoff harms endangered species. In late May, Crag Law Center sued Oregon, claiming state-forest practices are imperiling the marbled murrelet, a threatened seabird that nests in old-growth trees. Such strategies may be a more surgical approach to perceived shortcomings in Oregon's rules; neighboring states are partly protected from such complaints thanks to their habitat conservation plans and supporting laws.
Whatever happens, says Frissell, Oregon in particular needs "revolutionary changes": The state's forest-road systems were at least twice as dense as they should be to protect salmon from runoff effects in working forests, according to his review of 2009 data. Court rulings and state guidelines can evade the issue, says Frissell, "but the environmental problem remains."