Forestland owners face uncertainty over 9th Circuit's Clean Water Act ruling

By MATEUSZ PERKOWSKI

Capital Press

The U.S. Supreme Court appears to have taken an interest in a lawsuit over whether logging roads are subject to Clean Water Act permits.

The nation's highest court has asked the federal government to weigh in with its position in the case, which has far-reaching consequences for forestland owners.

"This is enormous. There are zillions of miles of roads and zillions of miles of culverts. How do you administer that?" said Richard Zabel, executive director of the Western Forestry and Conservation Association.

The request is a hopeful sign for the timber industry, which hopes the Supreme Court will review a prior ruling by the 9th U.S. Circuit Court of Appeals that would expand the Clean Water Act's scope.

"It significantly increases the chances," said Greg Corbin, an attorney representing timber companies in the case.

Typically, the high court reviews less than 1 percent of the cases on its docket.

However, roughly 1 out of every 3 cases the federal government is asked to remark upon is reviewed by the Supreme Court, Corbin said.

Paul Kampmeier, who represented an environmental group in the case, said it makes sense for the Supreme Court to seek the federal government's opinion due to the lawsuit's complexity.

If the case is reviewed, Kampmeier said he's confident the previous ruling will hold up.

"I feel like we're up to the task," he said. "We have a good case."

Last year, the federal appeals court found that water that runs through forest road culverts and ditches into streams and rivers is subject to Clean Water Act regulations.

The decision has opened the way for new environmentalist lawsuits against private and public forestland owners that allege violations of that statute, said Corbin.

"They never really had a good hook," he said, adding that such litigation could bring in more revenue for environmentalist attorney fees in successful cases. "That's bread-and-butter environmental law for these guys."

The controversy stems from a legal complaint filed by the Northwest Environmental Defense Center, which claimed the Oregon Department of Forestry violated federal law by not obtaining Clean Water Act permits for runoff from logging roads.

The group contended that culverts, ditches and other water conveyances are "point sources" of pollution under the statute that must be regulated because logging road sediment has negative impacts on fish.

A federal judge in Oregon rejected those arguments in 2007 but the 9th Circuit overturned that opinion, ruling that the U.S. Environmental Protection Agency cannot exempt such runoff from regulation if it's "collected and channeled in a system of ditches, culverts and conduits before being discharged into streams and rivers."

The Oregon Department of Forestry and timber companies contend that the 9th Circuit improperly failed to defer to the EPA's interpretation of the Clean Water Act.

"We think the 9th Circuit has overstepped their authority in the opinion," said Corbin.

The Supreme Court has now asked the U.S. Solicitor General to submit a document about the federal government's views of the case -- which may have major bearing on whether the 9th Circuit's decision is reviewed.

"We expected that might happen because the federal government was not a party in the case," said Scott Horngren, attorney for the American Forest Resource Council.

Horngren said he hopes the federal government will ask the Supreme Court to review the case because it has potential impacts on agencies beyond the EPA.

Logging roads on property owned by the U.S. Forest Service and U.S. Bureau of Land Management are directly affected by the 9th Circuit's ruling, he said.

Forestland owners recently won a reprieve from Congress, which approved a spending bill that prevents the 9th Circuit's ruling from taking effect until Sept. 30, 2012.

Corbin said that action may actually spur more interest in the case among Supreme Court justices.

"It's not a complete repudiation of the 9th Circuit ruling, because it doesn't permanently change the Clean Water Act," he said. "It expresses a level of displeasure on the part of Congress, but it doesn't moot the case."