SUPREME COURT:

Stormwater runoff on logging roads a lightning rod for justices

TILLAMOOK STATE FOREST, Ore. -- Water that collects at the side of a logging road here flows through a culvert under the roughly paved track and then splashes into the frothing South Fork Trask River.

It was that way for many years before it became a big deal -- a big enough deal to be the focus of a Supreme Court argument Monday.

An environmental group started it all. Out of nowhere, the Northwest Environmental Defense Center claimed in a 2006 lawsuit that the runoff from two logging roads in the Tillamook State Forest, about 40 miles west of Portland, was subject to Clean Water Act stormwater permitting.

That was news to the state and the logging industry, which has operated for decades on the understanding -- endorsed by U.S. EPA -- that logging roads do not require National Pollutant Discharge Elimination System (NPDES) permits. But the environmental group, known in these parts as NEDC, pointed out some ambiguities in the regulations, and in 2010, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in its favor.

It all leaves Dave Kunert shaking his head. He is a forester with Hampton Tree Farms Inc., a forest products company that participates in timber sales in the Tillamook area. It is one of the companies NEDC sued in its citizen suit seeking enforcement of the Clean Water Act.

On a gloomy Oregon day earlier this week, Kunert stood near one of the culverts on the Trask River Road -- one of the roads at issue in the case -- and explained how it collects runoff not just from the road but also from the steep hillside above the road. He noted that there are several private residences nearby whose owners would also contribute to runoff, as do recreational users of the forest. He's also seen a school bus using a small parking area right above one of the culverts to turn around. Regardless, he said, the timber industry -- based on the way that timber sales are handled -- is on the hook.

He questions the motivations of the plaintiffs, saying they are more interested in halting timber operations than in enforcing water quality standards.

"They felt they could put another nail in the coffin of logging in the Northwest," he said. "My gut tells me it's not the clean water they're concerned about."

Later in the day, he showed a visitor chinook salmon spawning in the river. He insisted the river is probably healthier than it was in previous decades, before industry improved its practices.

"We have definitely learned from our forefathers," he said.

NEDC and its lawyers don't agree. They say coho salmon and other fish species are adversely affected by the runoff from the logging roads.

Chris Winter, one of the lawyers involved in the case, explained that NEDC got involved because "the state was preparing to increase logging yet was still unwilling to acknowledge and mitigate the impacts that logging and logging roads have on Oregon coast coho and other native fish."

Regardless of the convoluted history of the 1972 Clean Water Act and its various regulations, the state and industry "were using pipes, ditches and channels to discharge polluted stormwater to fish-bearing streams without complying with the Clean Water Act," he added.

That explains why the case -- actually two cases, Decker v. Northwest Environmental Defense Center and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, that were consolidated -- has ended up at the high court. The state of Oregon and the timber industry, with the support of a majority of states, want the appeals court ruling reversed.

It's by some measure the biggest environmental issue before the court in the current term.

Silvicultural rule

In the 9th Circuit ruling, Judge William Fletcher wrote that man-made ditches, culverts and channels in the forest are used to collect and discharge runoff that eventually drains into the two rivers.

The sediment "adversely affects fish ... by smothering eggs, reducing oxygen levels, interfering with feeding, and burying insects that provide food," Fletcher wrote.

Critics say the decision upended a process that had worked for decades. Under that regime, states had the job of regulating runoff and EPA did not require permits. Under the "silvicultural rule," most recently amended in 1980, EPA concluded that most silviculture activities were not suitable for the NPDES program, which regulates point sources -- industrial discharge pipes -- as opposed to nonpoint sources like stormwater runoff.

The 9th Circuit concluded that although the silvicultural rule did exempt certain discharges from permitting, it did not exempt runoff that was channelized before being discharged into waters of the United States because it is not "natural runoff," the term used in the rule.

Further complicating matters, EPA, in a separate stormwater rule, later exempted certain point sources from permitting. Therefore, even if the logging road discharges are determined to be a form of point source pollution, they could still be exempt from regulation if the high court finds that they are not a form of "industrial activity."

When NEDC originally sued, U.S. District Judge Garr King of the District of Oregon wasn't much interested in whether sections of the roads feature ditches that channel stormwater to culverts that sent it into the South Fork Trask River and Little South Fork of the Kilchis River, respectively.

The judge instead focused on the fact that the Justice Department said the runoff was not point source pollution.

The case would have ended there if not for the 9th Circuit's intervention.

Political backlash

What happened instead was a political backlash in Washington, D.C., and the affected states when the appeals court ruling was issued.

The Obama administration was paying close attention. After the decision, but before the case came before the Supreme Court, EPA announced plans to issue a rule that would confirm that such runoff is not subject to permitting. It recently sent its proposed rule to the White House for review (Greenwire, Nov. 9).

In that light, the actual question of whether logging roads should be subject to permitting has somewhat receded in importance.

In fact, the administration asked the court not to take up the industry and state petitions for the very reason that it was planning on addressing the industry concerns via the rulemaking, which sources say is likely to be finalized by the end of this week -- just in time for the Supreme Court argument (see related story).

Oregon and the industry petitioners insisted the court should take the case anyway, in the hope that the court would at least find that logging runoff is not point source pollution. They are worried that if the 9th Circuit isn't reversed, EPA would still have future opportunities to regulate logging road runoff if it wanted to even if the rule is in effect.

There is also the possibility that the court will decide the case on another issue that lurks beneath the surface: whether the appeals court even had the authority to hear the case in the first place.

That's because Oregon and the industry defendants have argued that the appeals court effectively invalidated the silvicultural rule.

Under the Clean Water Act, EPA regulations have to be challenged within 120 days of being finalized. Such a challenge would be made directly against EPA in the court of appeals rather than the district court.

As industry lawyer Timothy Bishop, of the Mayer Brown firm, said in one of his briefs, the environmentalists' lawsuit "was filed too late, in the wrong court, and against the wrong defendants."

Lawyers for NEDC respond that the original lawsuit was not a challenge to the regulation. It was an attempt to engender enforcement of regulations that "require -- or at the very least are ambiguous and must be construed to require -- permits for the discharges at issue," Jeffrey Fisher, a Stanford Law School professor enlisted by NEDC to argue the case, wrote in his brief.

The court "need not fret" over that jurisdictional question, Fisher urged.

In an email, he stressed the rulemaking doesn't in any way dispose of the permitting issue.

"No EPA rule could moot our argument that petitioners are violating the plain meaning of the Clean Water Act itself," Fisher said.

But the Supreme Court's decision to hear the case despite the Obama administration's plea worries some environmental lawyers, who fear certain members of the court are, in fact, only interested in the jurisdictional question.

Allison LaPlante, a professor at Lewis and Clark Law School in Portland, filed a friend-of-the-court brief in support of the environmental group in which she focused on that issue.

"It has implications well beyond the context of logging roads," she said of the case.

If the court embraced the industry argument, people unhappy with a way a Clean Water Act rule was being implemented years after it was issued would be out of luck.

"That would be a pretty big sea change," LaPlante said.

In fact, EPA only specifically said for the first time that all forms of runoff from logging roads were exempt from permitting in its 2007 brief in the case (filed during the Bush administration), a fact that government lawyers conceded in a footnote contained in a later brief filed by the Obama administration.

It all puts the administration in an awkward position. It told the court not to hear the case, but now it has filed a brief backing the industry groups and states.

In its brief, Solicitor General Donald Verrilli said he agreed with critics of the appeals court ruling.

Verrilli wrote that the appeals court should have deferred to EPA's interpretation of its own rule.

EPA had interpreted its own regulation so as to not apply to any stormwater discharge from logging roads, even if the runoff did flow from a ditch into a culvert, he noted. "That position reflects a reasonable construction of the regulation's text," Verrilli wrote.

But the administration believes the 9th Circuit did have jurisdiction to hear the case.

The appeals court "did not declare" the silvicultural rule or the other stormwater rule at issue in the case to be invalid, Verrilli said. Instead, the court "rejected the interpretations of those rules set forth" by the government.

"Although the court should have deferred to EPA's reasonable construction of its own rules, it did not err in entertaining this citizen enforcement suit," Verrilli said.

Logical way

The court might not decide the case on the jurisdictional question. There is even the possibility of a 4-4 deadlock on at least one of the issues in the case because Justice Stephen Breyer is recused (his brother, U.S. District Judge Charles Breyer of the Northern District of California, was a member of the appeals court panel, sitting by designation).

One possible outcome, which some legal scholars view as the most logical way of dealing with the case, would be for the court to find that runoff from logging roads is point source pollution but then conclude that the roads do not fit within the definition of "industrial activity."

In that scenario, the 9th Circuit would be reversed on that point, the rulemaking would go ahead, the jurisdictional issue would not be the basis of the ruling, and the situation on the ground would be largely unchanged. It would also pave the way for environmental groups to challenge the new rule.

Driving back to his office in his Ford pickup, Kunert said the litigation has already made its mark on the industry in terms of drawing attention to its practices. But he insisted that he has nothing to hide, pointing to his willingness to show reporters and others the sites in question as proof of industry transparency.

He also questioned whether permitting would actually help improve water quality.

"We are confident in our operations," Kunert said. "We can do better, but is more paperwork better?"