US Supreme Court to decide on regulation of runoff from logging roads in lawsuit filed against Oregon Dept. of Forestry, four timber companies, by environmentalists

Wendy Lisney

PORTLAND, Oregon , December 3, 2012 (The Oregonian) – SUMMARY: A case begun by Oregon environmentalists will determine how tightly roads are regulated

Seven rainy springs ago, Mark Riskedahl and student volunteers from Lewis & Clark Law School visited the Tillamook State Forest to snag samples of muddy water washing into streams from roads used by logging trucks.

They succeeded: Their samples from the Trask and Kilchis rivers showed turbidity or from road runoff ranging from 34 to 971 times background levels, a potential threat to wild coastal coho on the endangered species list and to other fish.

"There was chocolate-brown muddy water suddenly entering an otherwise clear stream," says Riskedahl, executive director of the Northwest Environmental Defense Center at Lewis & Clark.

They also stirred up a national fuss.

Today the U.S. Supreme Court will hear arguments stemming from the lawsuit Riskedahl's group filed against the Oregon Department of Forestry and four timber companies after the sampling results came in.

The legal issue is whether, as Riskedahl and the 9th Circuit Court of Appeals contend, Clean Water Act point-source permits should be required for active logging roads, just as they are for factories and feedlots, if the roads divert sediment-laden water into streams. Regulators have treated logging roads as non-point-sources since the act passed in 1972.

Timber groups and Oregon officials note logging roads are covered by the state's Forest Practices Act, which includes provisions to minimize road runoff.

Treating unpaved logging roads as industrial activity would create regulatory chaos, they say, with permits, monitoring and data collection needed for thousands of miles of roads and thousands of culverts, ditches and pipelines.

It would open the floodgates for citizen lawsuits allowed under the Clean Water Act from groups determined to stop logging, opponents say, potentially putting 2.5 million timber jobs nationwide at risk.

And it would come as studies from Oregon's Department of Environmental Quality show forest streams have far better water quality than streams running through cities and farms.

"If the ultimate goal is water quality I don't think you should be looking at forestland as the problem," says Kristina McNitt, president of the Oregon Forest Industries Council.

Some prominent Democrats are backing the industry, Gov. John Kitzhaber, U.S. Sen. Ron Wyden and the Obama administration among them. So are 30 other states. On Friday the Environmental Protection Agency revised its regulations to clarify that logging roads don't need permits, though that doesn't stop the lawsuit

Riskedahl has allies, too, among them the American Fisheries Society and a group of former EPA and state regulators that includes Fred Hansen, who directed Oregon's DEQ for a decade.

They say industry fears are overblown. A general permit, like the Oregon Department of Transportation has for highway outfalls, would require far less effort than individual permits, they say.

The permit would apply only to roads under active use for logging and would focus on a small number of problem points. But it would add teeth to keep logging roads in shape, with solutions including bioswale sediment traps, road regrading and hay bales placed to stop sediment.

Heavy logging trucks compress aggregates laid on the roads, helping send dirt, rock and sand into creeks and rivers. That can smother salmon and trout eggs, reduce oxygen levels and bury insects fish feed on.

By requiring permits, "we could have greater confidence that pollution wasn't occurring, and to the extent it was, we would know how much," says Bob Van Dyk, forest policy manager for the Wild Salmon Center in Portland.

Oregon timber companies and regulators say they've made huge strides under the 1971 forest practices act, the first of its kind in the nation.

The act isn't toothless, they say. Loggers have to follow best management practices, including not building new roads along streams. Private landowners have improved 3,200 miles of forest roads since 1997, and a 2002 state Forestry Department report found more than 90 percent compliance with road rules.

Oregon has 51 stewardship foresters who can inspect logging projects, focusing on those most likely to affect streams.

In the past decade they've issued about five citations a year related to roads, says Peter Daugherty, the department's private forest division chief. Foresters can shut down projects if they find violations.

"Our attitude about the waters of the state and how we build roads has changed a lot," Daugherty says. "We learn over time, and we have improved our enforcement."

The road problems the Northwest Environmental Defense Center found in the Tillamook State Forest have been fixed. The problem spots were three miles from active logging areas and on roads used by residents and recreational users, not just logging trucks, says Steve Zika, CEO of Hampton Affiliates, one of the companies named in the lawsuit.

Across its operations, Hampton has added diversion culverts, relocated roads, used harder rock on roads and installed sediment filters in ditches, Zika says. If the Supreme Court backs permitting, he says, the company could have to get permits for 500 culverts between the Tillamook State Forest and its sawmill in Willamina.

Riskedahl and others remain skeptical.

Many older roads, including the two his group sampled by, run along streams. A 1997 Forest Department study found at least a quarter of Tillamook State Forest roads drained directly to streams.

It took a visit by volunteers to the sites, and a 60-day notice of a potential lawsuit, before the fixes were made, Riskedahl says.

His center has taken the 60-day notice approach with other stormwater permits for factories, feedlots and scrap yards, getting results when state agencies don't act. Usually, the companies fix the problems, Riskedahl says, averting a lawsuit.

Scientists have considered unpaved logging roads the main source of sediment from logging operations since 1954, a 2008 report to the EPA concluded. The EPA acknowledged earlier this year that sediment-laden runoff from forest roads can seriously degrade streams and hurt fish, including young salmon.

Eight of nine Supreme Court members are scheduled to hear the arguments today; Justice Stephen Breyer is recused because his brother was on the appellate court panel.

A Supreme Court decision is expected by spring.

Scott Learn: 503-294-7657; slearn@oregonian.com; twitter.com/slearn1

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