Washington Timber Leaders: Regulation of Logging Roads Needs Permanent Solution

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A recent Ninth Circuit Court of Appeals decision reclassified logging roads as "point sources" of water pollution, requiring industrial discharge permits typically applied to factories and sewage plants, for each drainage pipe or rain-water ditch on tens of thousands of miles of logging roads across the West. The EPA said the state-based system of forest practices is the best way to regulate forest roads and protect water quality.

In Washington, the state-managed BMP approach has resulted over the last decade in large forest landowners improving 18,700 miles of logging roads and opening 4,700 passages for fish and 2,600 miles of fish habitat. Even as one of the worst recessions in memory has squeezed forest owners, 2011 was a highly productive year for environmental restoration. They removed 1,000 fish passage barriers and 900 miles of fish habitat, according to a state report released last month.

"Forest owners in Washington remain committed to environmental stewardship, even in the midst of unprecedented economic hardship," said Mark Doumit, executive director of the Washington Forest Protection Association, Olympia, Wash. "Their success shows why BMPs not only work but exceed the environmental protection in a federal permitting system."

Along with the success of the state regulations and the EPA's decision, Congress has demonstrated support for the state-based approach by approving legislation last year that temporarily prevented the Ninth Circuit ruling from taking effect, but it expires in September.

Additionally, the Solicitor General (SG) recently filed a brief with the Supreme Court, which is considering whether to review the Ninth Circuit's ruling. Even though the SG agreed that the Ninth Circuit was wrong, the SG argued that the Court should not review the Ninth Circuit's decision because EPA and Congress are best able to resolve the issue.

Despite this wide support for the state-based approach, including the EPA's decision, there could be significant problems ahead, timber leaders say. The Ninth Circuit ruling reclassifying logging roads as "point sources" of water pollution will take effect on September 30 unless the legislation is made permanent. This means forest landowners across the West could still be subject to a flurry of third-party lawsuits, and legal uncertainty, no matter what the EPA does.

For Washington forest owners to have certainty, either the U.S. Supreme Court must take the Ninth Circuit case, or failing that, Congress must approve a permanent stay of the Ninth Circuit ruling. The Supreme Court is expected to make its decision on whether to take the case later this month.

"Forest landowners are already strained financially by one of the worst housing markets in history," Doumit said. "For them to succeed, they need to have a permanent solution regarding how our country's logging roads will be regulated. The EPA's decision is a positive step, but there are still a lot of questions that need to be answered. The bottom line is the need for long-term certainty."