If the Supreme Court declines to review it, a recent ruling from the 9th U.S. Circuit Court of Appeals in San Francisco will put federal courts into the business of managing every acre of privately owned timberland in America. Farmers beware. You could be next. In May, the 9th Circuit determined that rainwater draining from forest roads into local streams, rivers and lakes is “point source pollution.” As such, it must be regulated in the same way effluent from sewage-treatment plants is regulated. To make a long story short, rainwater that accumulates alongside logging roads has become a new target of environmental litigators. Several lawsuits were filed within days of the 9th Circuit’s decision.
The court made this determination despite the fact that the Environmental Protection Agency (EPA) has insisted for 35 years that requiring “point-source” permits is unnecessary to protect the environment and is even harmful. In deciding as they did, the judges overturned a long-standing rule that, within reason, the federal judiciary must defer to federal agencies in interpreting laws they enforce.
The main culprits here are the lowly drainage ditch and the only slightly more fashionable culvert, a steel cylinder buried beneath the road surface that directs rainwater away from the road, reducing the threat of flood-caused soil erosion. It is this rainwater that the three-judge panel thinks the federal government must regulate.
Many Americans don’t know that drainage ditches and culverts don’t pollute water. I know that because I grew up in northern Idaho’s great woods and have been fly-fishing in the West for more than 50 years. God only knows how many times I’ve stuck my thirsty mug in a river or stream on a hot summer afternoon, but I can tell you that gin-clear water passed through countless culverts, under dozens of bridges and alongside miles of forest roads before it reached my parched lips.
By instructing the EPA to oversee every ditch and culvert that runs alongside a forest road, the 9th Circuit is subjecting public and private timber landowners to an unnecessary and costly regulatory labyrinth that won’t make water any more suitable for fish and wildlife than it is now. Worse, every project, no matter its insignificance or urgency, will be appealed and litigated by environmental groups that oppose economically productive use of the nation’s forests.
The economic impact of this case is so significant that the attorneys general in 26 states have filed friend-of-the-court briefs urging the Supreme Court to review the decision, as have the Pacific Legal Foundation, famous for its private property rights advocacy, and several forest industry groups that represent forest landowners large and small. Sen. Ron Wyden, Oregon Democrat, also has weighed in, declaring that letting the court’s decision stand “would shut down forestry on private, state and tribal lands” wherever it is applied.
For 3 1/2 decades, the responsibility for protecting water quality in forests has fallen to the states. They have regulated forestry’s many activities - including road, culvert and bridge construction, repair and operation - under the watchful eyes of EPA enforcers, who relied on science-based “best management practices.” All this comes after the EPA’s 1976 decision that forestry yields non-point-source pollution that is more effectively managed by drainage ditches, culverts and vegetation than by rules that defy the laws of gravity. No matter - the judges seem to think that even rainstorms need to be regulated by the EPA.
The new administrative burdens the 9th Circuit decision puts on landowners and federal and state government is staggering. The U.S. Forest Service reports there are about 378,000 road miles in our national forests and that it will need about 400,000 permits. By the most conservative estimate, adding in state and private forests nearly doubles that number. Other estimates place the total well into the millions. Simply obtaining the Forest Service’s permits will take 10 years.
Word is that the Supreme Court will decide on Friday whether it will hear this case. Here’s hoping it does. The court might take the occasion to ask why the Court of Appeals found it necessary to overturn 35 years of regulatory precedent. Plaintiff lawyers might also be asked to explain the environmental impacts of not installing roadside drainage ditches or repairing bridges, culverts or roads damaged by flooding. Taxpayers also need an estimate of the economic harm private landowners and their employees will suffer if roads that cannot legally be repaired prevent them from reaching their harvestable timber. Throughout the United States, about 3 million family-forest landowners are engaged in harvesting.
Americans who love to hike will find it hard to believe that when they are out walking amid the splendor of their favorite forest they are, in fact, strolling through toxic industrial sites. In effect, that is what the 9th Circuit has said, and that is why the nation’s forest landowners are hoping the Supreme Court will rescue them from this new and astonishing display of legal revisionism and regulatory zeal.
Jim Petersen is the co-founder of the Evergreen Foundation.
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