Supreme Court throws out ruling classifying logging road runoff as industrial pollution

Here’s a news story…

Here’s the first sentence…

The Supreme Court on Wednesday sided with timber interests in a dispute over the regulation of runoff from logging roads in western forests.

It also sided with EPA in a D administration, who had just shoved a stick in their eye by issuing a surprise regulation on the eve of the Supreme Court taking the case… Just sayin’

But this is one of those cases.. what is the point here? More regulatory paperwork? Or is there some specific issue that relates to BMP’s not working? If so, what is it? Wouldn’t it be cheaper to have a meeting (open to the public) to discuss the specific water quality concerns, than to spend all the bucks to take the case to the Supreme Court? Unless folks just want to do it for the glory.. but it’s not glorious to lose, or is it?

Justice Scalia in his dissenting opinion agreed that the discharges from forest roads, aside from those four activities that have always required a permit gravel crushing etc., should not require a permit or that logging be classified as an industrial activity, but he did not like that the Court was asked to determine the intent of the EPA in their rule saying, “It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.”

Could someone explain why courts should determine what EPA meant by their rule? Or is it more complex than that?

Sometimes I think we need an Extension Service-like group to explain all these legal issues to the public. Maybe some law school will volunteer to run one as a pro bono effort?

Oh, and I guess The Northwest Environmental Defense Center filed a challenge to the new EPA rule on January 24th in the US Ninth Circuit. Is that the about the same thing? It seems very confusing.

Finally, I should add that I am a proud member of, and a volunteer with, the Society of American Foresters, who filed an amicus brief in this case.
But they were only one among many notable groups who did..
Here’s a link to see them all.

Of all the industries in the U.S. with all the environmental impacts they have, one has to wonder why this was it was so important to go after this one.. I’d like to hear someone (I know I keep asking this) articulate why they did this and what they hoped to accomplish, and why they picked this particular battle instead of the many others we might be able to imagine. In English, not legalese, and describing desired changes to the environment (Physical World).

Char Miller on Forests and Water

Having heard much of the Santa Fe and the Denver Water partnerships, it was interesting to get Char’s historical and southern California take in his piece here. I have to note that the former R-2 Regional Forester, Rick Cables, and Harris Sherman were known for speaking about water pretty much incessantly. To the extent that Dave Steinke made a series of clips of just Rick saying the word “water”, that was a hoot. Anyway, it’s good to see the Chief talking about it.

My only comment is that I don’t think the idea of “tight ecological relationship” was maybe what they were thinking back in the 19th century. I don’t think the term was used that way back in the day.

Here’s an excerpt:

No one better understood the power of water to define life in the American west than the 19th-century activists and scientists who articulated the need for the creation of the national forests. They predicated their arguments on a close reading of the land and the tight ecological relationship they believed existed between upstream watersheds and downstream economies.

To sustain healthy forests and clean water was what led George Perkins Marsh, John Wesley Powell, George Bird Grinnell, and Bernhard Fernow — directly and indirectly — to champion a more robust federal regulatory presence on the public domain. Without some form of control exerted over these landscapes and the common (and wet) resource they provided the opportunity to establish communities in this oft-arid terrain would dry up.

This conception was woven into what would become the Forest Service’s organic act, legislation enacted in 1897 that defined how the “forest reserves” were to be organized and administered, and on what basis: “to improve and protect the forest within the reservation…securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.”

Note that water took sequential priority to timber, an ordering that leads to a reconceptualization of the significance of the Forest Service’s name: its managerial actions are in support of the ecosystem services its high country woodlands provide, whether in the Rockies, Wasatch, or Cascades, the Appalachian or Alleghenies, the Sierra, Santa Anas, or San Gabriels.

Note, too, that each of these ranges, and the others over which national forests are draped, bear a direct connection to lowland communities dependent on the rivers, streams, and creeks whose sources lie in the mountains above. This is not by happenstance. Residents of those valley cities and basin towns were among the most powerful proponents of the national forests in the late 19th and early 20th centuries. Worried about the deleterious impact that rapid timber harvests, wildland fires, and grassland overgrazing were having on local potable water supplies, they pushed hard for federal oversight.

This was as true of San Diego’s advocates of the San Jacinto Forest Reserve (now part of the Cleveland National Forest) as for those in San Bernardino and Riverside who promoted what would become the San Bernardino National Forest. They, like their peers in Ashland, Oregon who championed the Rogue River National Forest, and in New England who fought to secure the White Mountain National Forest, appreciated how integral these natural systems were to their daily lives; healthy forests meant healthy humans.

Region 2 National Forests and Water

We were discussing something earlier on this blog, and it seemed that this information might be relevant.
It is now out of date, as it was based on 2000 Census Data, but you can get the general perspective.

Here is a pdf, in case you want to see more clearly.

California’s Dense Forests Present New Opportunities

Forestry operations and bioenergy have been part of the economic and social fabric in Northern California for decades. A five-year study produced in 2009 by the USDA Forest Service modeled forest management under different scenarios across 2.7 million acres encompassing the Feather River watershed. The model’s time horizon spanned four decades, examining wildfire behavior, forest thinning operations and a range of environmental and economic impacts. It concluded that in virtually every aspect analyzed, managing forest resources and utilizing biomass for energy production provides significant advantages over the status quo.

With acres per wildfire going WAY up, thinning projects seem to be the way to go to reduce both wildfire sizes and wildfire intensities. Again, we have strict diameter limits in the Sierra Nevada, and clearcutting has been banned since 1993.

The link is here

More Wonkfests: EPA on Forest Roads

Ah.. it doesn’t get better than this. Here’s a link to the Supreme Court oral arguments. Note for the People’s Database: seems to me like all oral arguments should be posted for any courts.

On December 5, two days after the Supreme Court arguments that John described, the University of Minnesota Department of Forest Resources hosted a seminar called “Will Forestry Become a Regulated Activity Under the Clean Water Act? The speakers were David Tenney, John Barnwell, and Lisa Thornvig. It’s interesting how the issues in Oregon flow (so to speak) all over the country. Here’s a link to the webcast.

Gotta love these webcasts. Thank you University of Minnesota for posting! and thanks to SAF for the link. We ragtag hobbyist wonks appreciate it greatly!

Prevent legal quagmire for timber industry: Oregonian Editorial

Yes, save lots of litigation bucks! I agree with the Oregonian Editorial Board here.
Christmas always reminds me of Dickens, and this case could otherwise grow into one reminiscent of the infamous Jarndyce v. Jarndyce. There are many other, potentially more productive, public works and employment programs we could invest in..

The Supreme Court may now punt rather than ruling on the merits in the case, Tenny says. Environmental groups will respond by challenging the EPA’s new rule in court, and the legal wrangling, once again, will go on and on.

Enter Congress. If the Supreme Court does, in fact, give the case the brush-off, Congress should act quickly on very targeted legislation introduced in both the House and Senate. The companion bills enjoy bipartisan support, including that of Rep. Greg Walden, R-Ore., Rep. Kurt Schrader, D-Ore., and Sen. Ron Wyden, D-Ore. Their passage would simply provide firm legal footing for long-standing EPA policy governing logging runoff.

This legislation barely moves the needle on the controversy meter, and it would provide great relief to an important industry in Oregon and many other states. It deserves prompt passage..

The idea of surgical litigation to resolve issues that cause protracted litigation otherwise is a useful one to have in the CREATE toolkit. Speaking of transparency, here is a link to the oral arguments. And a quote suggesting the alternative to legislation is protracted litigation (thanks to Steve Wilent for finding this):

MR. FISHER [for respondents = NEDC]:

But if I might just explain to this Court, I think it will help the conversation if I explain exactly what our case looks like going forward, because we have and will maintain a claim for forward-looking relief for two reasons. One is, for the reason that was mentioned a couple of times in the beginning part of the argument, because we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself, which is to say the language that requires EPA to regulate -

JUSTICE SOTOMAYOR: Is this a -

MR. FISHER: — all discharges associated with industrial activity.

Observations on Some Current Cases, and Introducing REAL

I think we really need to start a group toward reforming environmental conflict resolution as currently carried out through the court system.

We need an acronym.. for the time being, I will use REAL for “Reforming and Enhancing Appeals and Litigation” as it pertains to environment and natural resource disputes, particularly in public lands. Other acronym suggestions are welcome. You all have given me ideas, plus others outside this blog have, for ideas and actions that we may or may not agree to support in terms of:

1) Increasing transparency, public participation, and accountability in the resolution of disagreements involving public lands,

2) Through either direct action, or influencing legislation or Administration policy.

So I will be rounding up some of those ideas in the next few weeks.

I ran across these three pieces that help make my case for action:

1. (Litigation does not addressing the real issue). This story is “Feds file litigation to weaken ranchers’ claim” here. Where’s the best available, or any, “science” for that matter? Nowhere to be seen. It seems to me like conflict resolution folks could have been brought in on this to mediate the real issues, which seem to be 18% reduction, and not the Constitution. Likely to be more cost-effective to the taxpayer and more effective. But there could be history here that I’m not aware of, so those who know more, please speak up.

2. (Litigation does not address the real issue) Thanks to Terry Seyden for this one. This was in Forbes. This is a big enough deal that many folks are involved, including timber industry, and SAF (needed to be transparent about that). The same arguments could be made that this author makes,about other tinier projects, only without the broad base of (financial and other forms of) support.

On December 3, the U.S. Supreme Court will consider who is best suited to set national environmental policy – the experienced scientists and regulators at the Environmental Protection Agency or activist trial lawyers.

..

and

The former dean of the Yale School of Forestry and Environmental Studies, John Gordon, worries that, “Injecting permit requirements into this [BMP] process will only make the ongoing upgrade of our [environmental protection] methods slower and more expensive, diverting resources from reducing sediment to the legal machinery of permit review and litigation.” “In this case, environmental activists are not on the side of the environment,” he concluded. The EPA agrees; regulators have insisted for decades that permitting was not designed for—and does not work for—forest road runoff even as state forest road BMPs are widely acknowledged to have proven effective and efficient.

When the Supreme Court convenes on December 3rd, the critical question will be whether 35 years of effective regulation from EPA should be surrendered to America’s lawsuit industry.

To be fair, let’s take a look at this fellow’s background here. He is not one of our experienced folks in this area.. still he doesn’t claim that his opinions are a “scientific report.”

3. (Understanding the intricacies of the legal processes is not always easy, plus not addressing the real issue, plus not clear where the scientific information would lead.) Here is a link.

But Monday, U.S. District Court Judge John L. Kane rejected the settlement. At issue is a provision saying if there is a dispute over the implementation of the document, neither side can be found in contempt of court. The judge ruled that provision exceeds the authority of the two sides and could lead to them not reporting violations of the court order.

Tim Ream, attorney for the environmental group, called it a “very esoteric point” and said negotiations continue on reworking the settlement.

Dirt bike groups, who have funded and carried out maintenance work on the trails for years, have blasted the lawsuit as unfairly singling out dirt bike riders from hikers, mountain bike riders and others they say also impact the creek.

“We are not satisfied with the process to date,” said Don Riggle, president of the Colorado Springs-based Trails Preservation Alliance. His is one of three groups representing motorized vehicle riders that have joined the lawsuit as intervenors.

He said he agreed to a settlement with the Center for Biological Diversity with the understanding the ban would be in place only for the winter months, until the trails could be realigned, but last week’s settlement differed “in principle.” The document includes no timetable for reopening.

Here’s my information question, if three groups are intervenors, do they get to sit in while the settlement is discussed? To an outsider, seems like they should. Could someone explain how that works? ‘Cause otherwise it looks like a pretty closed door to the public.

Forest to Faucet Partnership- Denver Water

Thanks to Terry Seyden for this one…
Here’s the link.

By Jim Lochhead
and Dan Jirón
Guest Commentary

National Forest lands serve as the primary source of water that sustains cities and farmlands up and down the Front Range. This summer’s tragic wildfire season, fueled by heat and drought, once again demonstrated that catastrophic wildfires can wreak havoc on our watersheds and have devastating impact on life and property.

Fires impact water supply and water quality by increasing flows of sediment, debris and ash into streams and rivers, requiring emergency measures at treatment plants and millions of dollars to repair damage to habitat, reservoirs and facilities. Today, Colorado Springs and communities in the Fort Collins area are facing the immediate and long-term impacts from the Waldo Canyon and High Park Fires on their water supplies.

More than 10 years ago, the Buffalo Creek and Hayman fires brought to the forefront the need to work more closely together to tackle the impact of wildfires on Denver’s most critical water supply. We learned that our water infrastructure is more than pipes and dams. For Denver Water, our infrastructure encompasses more than 2 million acres of forested land in eight counties. Our investment in these watersheds is a long-term commitment to keeping them healthy decades from now.

We can’t prevent fire from occurring, but healthy forests can reduce the threat of catastrophic fire, like we experienced this year. Denver Water and the U.S. Forest Service have for decades worked side-by-side to care for the watersheds that provide water to Colorado citizens and Denver Water’s customers. Two years ago we forged a partnership — called “From Forests to Faucets” — to work in high-priority watersheds to accelerate forest health treatments that promote healthier, more resilient forests, reduce wildfire risks, restore burned areas and lessen erosion into reservoirs.

Last week, Denver Water and the U.S. Forest Service signed the third annual commitment of funds in support of this partnership. Together, we are focused on treating and restoring 38,000 acres of National Forest System lands in five priority watersheds including the Upper South Platte, South Platte headwaters, Colorado River headwaters, St. Vrain and Blue River. Since the From Forests to Faucets partnership began in 2010, we are currently treating nearly 17,000 acres.

In the Indian Creek drainage near the Rampart recreation area on the Pike National Forest, crews have treated more than 600 acres by removing ground fuels and thinning trees and reducing the threat and impacts of wildfire in the area. Near Dillon Reservoir, which is part of the Blue River Watershed on the White River National Forest, we’ve treated 600 acres, and 1,400 acres will be treated in 2013. Treatments include removing bark beetle-affected trees around the reservoir, while leaving the cut trees on the ground to support the next generation of forest.

The critical work done in these priority watersheds means improved water quality for Denver Water customers and millions of downstream water users, and healthier ecosystems, which benefit forest visitors and wildlife. While our current agreement focuses on reaching specific goals by 2015, we recognize that we’ll be working together for decades to come.

We are extremely proud of the work accomplished to date to protect our National Forest lands. The outcome of pulling our resources together, prioritizing work within critical watersheds, and putting people to work on the ground to improve water quality and quantity makes a real difference for Denver Water customers, forest visitors, and the ecosystem. We feel strongly that this partnership is a replicable example for future opportunities to approach critical watershed and forest restoration with partners that can only gain from what each can bring to the table.

Jim Lochhead is CEO and manager of Denver Water. Dan Jirón is a regional forester with the U.S. Forest Service, Rocky Mountain Region.

I wonder why this water partnerships like this are a New Mexico/Colorado phenomenon and not a California/Montana phenomenon? Maybe I just don’t know about them elsewhere? Maybe the lack of a forest industry means that these things can happen without the timber wars ghosts? Ideas?

Zion Cottonwoods

During my recent trip to SW Utah, I was fascinated by the old and large cottonwoods in the canyon bottoms. While they do have good fall color, I was more mesmerized by the hypnotic bark patterns.

A close-up of the bark reveals such interesting patterns to something thought to be more random in nature. This old tree had fallen from last year’s big floods, a completely normal thing for Zion Canyon. It’s truly amazing that cottonwoods can resist so many flash floods over an 80-120 year lifespan. Of course, there could be “micro-evolution” at work here, in this specialized environment of Zion Canyon.

In these narrow slot canyons, only those trees with the strongest roots can withstand the debris torrents that reshape channels and move boulders, like this one lodged under the huge, water-altered cottonwood branch. To the right of this tree is a house-sized boulder. To the left, outside of view, is another giant boulder. Up the canyon is a giant, super-narrow slot canyon, which drains a substantial watershed of solid bedrock. What an awesome experience it would be to find a safe spot to watch a flash flood here.

To see my recent pictures from SW Utah, go here

www.facebook.com/LarryHarrellFotoware

 

The Tyranny of Nativehood, Species-in-the-Sierra Style

This range map is from the California Nature Mapping Program http://naturemappingfoundation.org/natmap/ca/

Here’s the link and below are excerpts.

If beaver will perform a useful hydrological function in an era of coming drought, does it matter how “native” they are? Do they have to have been shown (by whom? how many?) to be in a drainage, a watershed, a mountain range? If Kokanee are not native, should they not be celebrated?

If the “ecosystem” needs all species that were there at some point in the past, and yet the different species like different conditions, and managing the conditions to make sure they are all provided for takes lots of money, and neither California nor the Federal government is rife with money..

I found this discussion fascinating, because, like the fire issue, within the discussion is an idea “nativeness in the past” that is said to determine today’s policy.

The articles have caught the attention of the California Department of Fish and Game, which is re-examining its beaver policies in the Sierra, said Matt Meshiry, an environmental scientist with the department.

“If they are a native component, then we need to examine land use and species management … in terms of maintaining and preserving the ecosystem,” Meshiry said.

Pister, the retired fisheries biologist, is skeptical, saying beaver have harmed golden trout – the California state fish and a native species – in the eastern Sierra.

“We found beaver dams prevent migration and genetic interchange between populations while silting in the best food-producing and spawning areas,” he said. “Trout would grow larger in beaver ponds, but at a biological price.”

And of course, population differentiation from separation of populations, and interchange or migration, are both important evolutionary processes.

But this year, beavers built a dam not far from the facility, threatening to flood it and a trail. The Sierra Wildlife Coalition urged the Forest Service not to disturb the dam, suggesting a piping system be installed to permit water to flow through the dam, preventing flooding and protecting beaver – or that the level of the pathway be raised.

On Sept. 26, Forest Service crews dismantled the dam instead. The beaver weren’t harmed but Guzzi fears for their future.

“They have to stockpile food for the winter because they don’t hibernate,” she said. “So this is taking away their food. And they could starve.”

“It’s a strange corner for the Forest Service to be backed into because it’s all artificial,” Guzzi added. “It’s a little ironic, to say the least.”

Heck, the Forest Service spokeswoman, acknowledged the subject is challenging.

“There are a lot of complex issues,” she said. “Are you dealing with two non-native species and balancing their needs? Are you balancing a native and a non-native? There has been quite a bit of conversation.”

She also said dismantling the dam was the right decision.

“Essentially, we were hoping we could discourage them (the beaver) from rebuilding in that location while allowing downstream dams to persist.”

“It’s one thing to suggest things. It’s another to be the entity that has to implement solutions,” Heck added. “We have to look at what the maintenance load would be (and) whether it’s actually going to work.”

Also up for discussion is the focus of the popular fall festival on a non-native species.

“It does take some thought about how to shift an event like that,” Heck said. “What would that new theme be? How are we going to talk about both the kokanee and native species?”

It’s strange that all these folks, most of whom contain large numbers of non-native genes, are having this discussion. Somehow it seems to have gotten into folks’ understanding that non-natives are undesirable. Some are, but we need to decide which ones, and agree on why they are undesirable, if so, what can we do about it, can we afford it, and will it work- not judge a species solely on its ancestry.