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Tillamook Headlight Herald: "Judge: Logging roads pollute"

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August 24, 2010 -- Local timber interests are bracing for the potential impact of a court ruling that dirt, rock and sand runoff from logging roads is a form of pollution requiring a permit under the Clean Water Act.

http://www.tillamookheadlightherald.com/news/article_281a44ca-afb9-11df-90ec-001cc4c03286.html

Local timber interests are bracing for the potential impact of a court ruling that dirt, rock and sand runoff from logging roads is a form of pollution requiring a permit under the Clean Water Act.

The decision was issued Aug. 17 by the Ninth Circuit Court of Appeals. It stemmed from a complaint over runoff from two particular roads in Tillamook County.

Defendants in the case - including the Oregon Department of Forestry, the County of Tillamook and several logging companies - said they are moving forward with plans to appeal.

While it remains unclear just how the ruling will be interpreted into law, defendants say it could have a major impact on the Oregon Department of Forestry's plans to increase logging by 20 percent in the Tillamook and Clatsop state forests.

Tillamook County Commissioner Mark Labhart said he believes the ODF's plan to increase logging is at the heart of why environmentalists filed the lawsuit. "I believe their intent is and always has been to severely restrict harvesting," Labhart said.

"Here's what I was told several years ago by a prominent environmentalist: ‘We are done with the Forest Service. We are now moving to State Forest Lands and our goal is the same, which is to shut them down.'"

The ruling comes after the Northwest Environmental Defense Center in Portland claimed the defendants were violating provisions of the Clean Water Act by not obtaining permits for storm water runoff.

Labhart said he believes the environmental community will use the Clean Water Act as a way to appeal every future state timber sale and tie up the Department of Forestry in court.

"This is what they do on USFS (US Forest Service) timber sales," he said. "Once they are done with the State, their next move may be to private forest lands."

But representatives of the Northwest Environmental Defense Center said the permit requirement is merely a tool that has been proven effective in reducing pollution. "It presumably will be a general permit so that foresters could determine which roads would be hauled on and decide best management processes to reduce pollution," said Paul Kampmeier, an attorney for the Forest Law Center, which worked with the Northwest Environmental Defense Center on the case.

"Fewer truck trips, different types of gravel; there are different things they can do."

Storm water runoff flows into channels along logging roads and eventually into forest streams and rivers. The environmental center contends the runoff deposits large amounts of sediment that adversely affect salmon and trout living in those waterways.

While the ruling says a permit will now be required to use those roads for logging purposes, ODF representatives said they are unsure what that permitting process will look like.

"It's not concrete yet what this means," said Dan Postrel, a spokesman for the Oregon Department of Forestry. "At this point, appeal is an option, and we will look at all options as we decide what to do next. It's too early to say what significance this ruling has."

The Ninth Circuit's ruling comes as the Oregon Department of Forestry is moving forward with plans to increase logging on state forest land. In June 2009, the State Board of Forestry approved a management plan that environmentalists say would result in clearcutting an additional 100,000 acres.

Kampmeier cited the state's new forest management plan among several reasons the Northwest Environmental Defense Center targeted the two logging roads in Tillamook County.

Those two roads are Trask River Road, which parallels the South Fork Trask River, and Sam Downs Road, which parallels the Little South Fork of the Kilchis River.

Both roads are used primarily to gain access to logging sites and to haul timber from the forests.

"When we were out to these roads during a rainstorm, with truck traffic grinding up the gravel, we saw these roads deliver pollution through storm water to the Trask River salmon spawning habitat," Kampmeier said.

"Because they're public state lands, the state shouldn't be polluting their own streams and salmon populations there.

"The other issue," said Kampmeier, "is related to what's going on with the State Forest and Board of Forestry making attempts to increase the amount of logging that happens in Tillamook State Forests. It will increase traffic on state forest roads, which will increase pollution for fish."

The ruling reversed a previous decision by a lower federal court judge who dismissed the lawsuit. He had concluded that the storm water runoff from logging roads was exempt from the pollution permit process under a 1987 amendment to the federal Clean Water Act.

The new ruling defines it as "point-source runoff," no longer exempt from the National Pollutant Discharge Elimination System permitting process.

"I'm disappointed. I thought the district court's ruling was going to be upheld," said Bill Sargent, an attorney for the County of Tillamook, which was among the defendants in the case. "We definitely were hoping for something different.

"It's all really very early," added Sargent. "We haven't had much of a chance to talk to attorneys for the timber companies and board, and whatever happens will be a coordinated effort.

"Everyone is trying to figure out what is the right thing to do."

Ray Wilkerson, executive director of the Oregon Forest Industries Council, said he fears the potential impact of the decision. "It has very far-reaching implications. It could apply to any road anywhere in the U.S.," he said.

"This is not the last word," said Wilkerson. "We plan to appeal at this point."