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Appeals court applies Clean Water Act to culverts, ditches

Published on August 21, 2010 3:01AM

Last changed on September 18, 2010 8:29AM

Ruling targets logging runoff as source of pollution


Capital Press

Water that runs off logging roads through culverts and ditches should be subject to Clean Water Act regulations, according to a federal appeals court ruling.

The 9th U.S. Circuit Court of Appeals decision is expected to affect private and public forest lands that include manmade channels for directing runoff into streams and rivers.

Pollutants from logging roads degrade water quality and harm sensitive aquatic species, the Aug. 17 ruling said. "This sediment adversely affects fish -- in particular, salmon and trout -- by smothering eggs, reducing oxygen levels, interfering with feeding and burying insects that provide food."

Under the appellate court's interpretation of federal law, the U.S. Environmental Protection Agency should enact Clean Water Act permit rules for such runoff "effectively and relatively expeditiously."

The underlying case pertains to several logging roads in Oregon's Tillamook State Forest, but the impact of the 9th Circuit decision will be much more far-reaching, said Paul Kampmeier, an attorney who represented environmental plaintiffs in the litigation.

"The principle is applicable to any discharge of point source pollution from a haul road in the West," he said. "The implications are widespread."

The Clean Water Act regulates pollutants that emanate from a known outlet, such as a pipe, but doesn't encompass "nonpoint sources" of discharge, such as pollutants seeping into waterways from the ground.

The 9th Circuit ruled that culverts and ditches collect and convey contaminated water from logging roads, and thus fall under the definition of "point sources" of pollution.

The EPA didn't have the authority to exempt such pollution sources from regulation in a "silvicultural rule" established by the agency in 1976, the decision said.

Stormwater runoff exemptions enacted by Congress in 1987 also don't apply because logging and hauling are "associated with industrial activity," the ruling said.

However, the ruling indicated that EPA may subject culverts and ditches to "general permits" under the Clean Water Act, which are generally less cumbersome to obtain than permits tailored to individual industrial facilities.

Ray Wilkeson, president of the Oregon Forest Industries Council, said the group disagrees with the decision and will most likely seek an appeal.

Representatives of the Oregon Board of Forestry and several timber companies involved in the litigation said they were still reviewing the ruling.

The lawsuit was initiated in 2006 by the Northwest Environmental Defense Center, a nonprofit group founded by professors and students at Lewis and Clark Law School in Portland, Ore.

The group claimed the Oregon Board of Forestry and several timber companies violated the Clean Water Act by not obtaining pollutant discharge permits for culverts and ditches that directed water into the Trask and Kilchis rivers.

A federal judge dismissed the case in 2007, ruling that runoff from logging roads was exempted from permitting requirements, but the 9th Circuit has now overturned that decision.


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