Much ado about mud


Until recently, the phrase “flash flood” conjured in my mind a racing blue wall of water, or a canyon running red as blood with sediment – a deadly natural force that smells simply and cleanly of earth and rain. But a trip with friends down the San Juan River in southeastern Utah set me straight a couple summers ago. Every time a thunderstorm parked on the horizon, tributary washes vomited filth into the main stem, creating suspensions of foul mud so thick the water left a crackly skin of dust on our bodies.

At our last campsite before the takeout, I sank to my thighs in greenish muck at the mouth of flash flood-prone Oljeto Wash. The smell was ungodly, halfway between rot and feedlot -- a landscape’s worth of refuse, from motor-oil cans and cellophane wrappers to sheep and cattle manure, scoured free by rain, super concentrated by narrow-veined drainages and deposited between us and the beach where we had hoped to enjoy a celebratory tequila shot or two.

The experience, for me, was sort of a scummy baptism into a landscape-level vision of how people affect the environment. Seemly inconsequential messes – a drizzle of coolant in your driveway, that dog poop you didn’t scoop because you forgot a bag – clearly could add up to quite a lot across a watershed packed with people and their livestock, industries and farm fields. And I had the shit-stockings to prove it.

Dense networks of logging roads in the Pacific Northwest present this sort of problem on a grand scale. Heavy, frequent rains flush sediment and gravel from the earthen roads into streams where they can harm already-struggling salmon runs by smothering eggs, scraping gills or hampering feeding.

Environmental groups’ attempts to get a firmer handle on that pollution suffered a setback March 20 when the Supreme Court supported the Environmental Protection Agency’s decision to not regulate logging-road runoff as “point-source” industrial pollution under the Clean Water Act. Bringing that law to bear could have led to much stricter monitoring and water-quality standards and no-cut buffer zones around streams, among other measures.

As Josh Zaffos reported for HCN last summer,

since 1976, the law has exempted forestry's "natural runoff" as "nonpoint source" or dispersed pollution, allowing states to develop their own forestry guidelines to deal with such matters. (But some) court rulings over the decades have contradicted the exemption and considered forest-road runoff as direct, or "point source" pollution, which the EPA is explicitly required to regulate. And because the states and many rural counties rely on timber revenue to fund schools and other public services, (says environmental lawyer Chris Winter of the Portland-based, nonprofit Crag Law Center), they often do a less-than-thorough job dealing with runoff pollution themselves.

After a particularly damaging storm in Oregon’s Tillamook State Forest in 2006, Winter’s group, some colleagues and the Northwest Environmental Defense Center sued the Oregon Department of Forestry and a handful of logging companies for violating the CWA, and argued that EPA should step in. In 2010 and 2011, the 9th Circuit Court of Appeals, which handles much of the West, agreed with them. A congressional moratorium temporarily held the EPA back from regulating the runoff in accordance with the court’s decision, but timber companies and 29 states came out against it.

“The National Alliance of Forest Owners (NAFO) projected $654 million in annual costs for private forest owners in California, Oregon, Washington, Idaho and Montana,” Zaffos reported. Timber companies howled that the approach would leave their already struggling industry at the mercy of costly litigation, delays and regulations. Meanwhile, “projects on state and national forests, including fuels reduction and forest health work, would also face new fees and more exhaustive reviews.” Trying to strike a middle road between the economy and the environment, and hoping to forestall what could have been an environmentally damaging High Court decision, the EPA clarified its rules before the case was argued, explicitly excluding the industry from CWA permitting.

In the end, the court sided with EPA. In a 7-1 decision last week, the justices affirmed that the agency was acting within its bounds. “It is well established that an agency’s interpretation need not be the only possible reading of a regulation — or even the best one — to prevail,” Justice Anthony M. Kennedy wrote in the majority opinion. “…(T)he Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’”

Though clearly disappointed, plaintiffs in the case see wiggle room to push for stricter rules since the court did not discount the argument that EPA could indeed regulate logging-road runoff under the CWA. “Because the Court implicitly accepted that logging roads may be subject to the Clean Water Act’s stormwater provisions,” Mark Riskedahl, Executive Director of NEDC, said in a statement, “people who care about clean water and healthy fish populations will continue to press EPA to deal with polluting logging roads.”

Alternatively, as Zaffos wrote,

Environmentalists and scientists could change tack and sue over how forest-road runoff harms endangered species. (Late last) May, (for example,) Crag Law Center sued Oregon, claiming state-forest practices are imperiling the marbled murrelet, a threatened seabird that nests in old-growth trees. Such strategies may be a more surgical approach to perceived shortcomings in Oregon's rules (since) neighboring states are partly protected from such complaints thanks to their (more restrictive and effective) habitat conservation plans and supporting laws.

Industry, for its part, sees a clearer victory, according to The Oregonian:

Greg Corbin, (an attorney from the firm that represented the timber companies in the case), noted that the Supreme Court majority cited Oregon's "extensive effort" to manage stormwater runoff from logging roads. "I think that's a comment from the court saying that these kinds of rules are doing the job they're supposed to do.”

Sarah Gilman is associate editor at High Country News

Image of logging-road runoff near the Illinois River in southern Oregon courtesy of the Klamath-Siskiyou Wildlands Center

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