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Court: Can EPA regulate mud from logging roads?

By Jeff Barnard
?AP Environmental Writer

GRANTS PASS, Ore. (AP) – The timber industry is hoping that the U.S. Supreme Court will maintain business as usual on controlling muddy water running off logging roads into salmon streams.

The high court decided Monday to take up a 9th U.S. Circuit Court of Appeals ruling that federal regulators should treat stormwater on industrial timberlands the same as pollution discharged from a factory, changing the longstanding practice that treats it like water coming off farm fields.

The ruling on an Oregon case would apply to logging roads on state, private and national forest lands throughout the jurisdiction of the 9th Circuit, which covers much of the West. Most of the roads are graveled, but some are paved or bare dirt.

Tom Partin, president of the American Forest Resource Council, said increased regulation would cost money and offer conservation groups new opportunities for blocking logging without producing any cleaner water.

“Over the years, we have been able to continually improve our practices as we have learned more about the environment,” he said in a statement. “Water flowing from our forests is high quality,”

Paul Kampmeier, a lawyer for the Washington Forest Law Center, which represents conservationists, said the high court was presented with arguments urging them to take up the case from 26 states, including Oregon, as well as the timber industry.

“I think the defendant, or the petitioners now, did a very good job of making it sound like the sky is falling,” if the ruling stands, Kampmeier said. “Congress is political, and there is political pressure on EPA…I think we will get a fair and impartial ruling from the Supreme Court.”

The appeals court ruled in 2010 that the muddy water running off roads used in industrial logging is the same as any other industrial pollution, requiring a Clean Water Act permit from EPA. Scientists have long identified sediment running into salmon streams from erosion as a leading cause of habitat loss because it chokes off the gravel beds where salmon lay their eggs.

The case was brought by the Northwest Environmental Defense Center in Portland, Ore., against the Oregon Department of Forestry over logging roads on the Tillamook State Forest.

The Obama administration petitioned the Supreme Court not to take the case. It argued that while it felt the appeals court ruling was wrong, there was no reason for the Supreme Court to get involved, because Congress and the Environmental Protection Agency were taking steps already.

Last May, EPA formally proposed to revise storm water regulations to say logging roads don’t need the point-source pollution permits that factories must get, effectively blunting the ruling.

Instead, the roads would be regulated under a less stringent system known as “Best Management Practices,” where authorities set up guidelines for the design and maintenance of logging roads to minimize erosion that sends mud into rivers. EPA started reviewing how states and tribes handle the issue, and planned to put out new rules by Sept. 30, when an exemption for the timber industry enacted by Congress expires.

Dave Tenny, president of the National Alliance of Forest Owners, questioned the need for EPA to continue developing new regulations for logging roads now that the issue would be decided by the high court.

“The basic question in the case is what kind of deference the courts give an agency to interpret the statutes and their own regulations,” Tenny said. “The 9th Circuit interjected itself into the realm of the regulatory agency. And that’s inappropriate.”

Oregon Department of Forestry spokesman Dan Postrel said the current system has done a good job of protecting water quality for many years without federal permits.

Kampmeier said only roads with trucks actively hauling timber that discharge water into streams would require permits.

“We have confidence the Supreme Court will agree that when the EPA said discharges associated with industrial logging activities requires a permit, EPA is allowed to say that,” he said.

Asked whether it would continue working on new regulations, an EPA spokeswoman referred comment to the U.S. Department of Justice, which declined to comment on pending litigation.

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