6-20-11 letter to administrator jackson

8/6/2019 6-20-11 Letter to Administrator Jackson

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Sierra Club Natural Resources Defense Council Earthjustice Clean Water Network Waterkeeper Alliance Center for Biological DiversityNorthwest Environmental Defense Center Environmental Protection Information Center Pacific Rivers Council Atlantic States Legal Foundation

Wildlands CPR Northwest Environmental Advocates Oregon Coast Alliance Wild Salmon Center Rogue Riverkeeper Oregon WildColumbia Riverkeeper Siskiyou Project Tualatin Riverkeepers Klamath Siskiyou Wildlands Center Spokane Riverkeeper Bark

Umpqua Watersheds Native Fish Society Cascadia Wildlands Oregon Environmental Council Conservation NorthwestWashington Environmental Council Gifford Pinchot Task Force Wild Fish Conservancy 10,000 Years Institute The Lands Council

Olympic Forest Coalition Heartwood Friends of the Clearwater Atchafalaya Basinkeeper Charles River ConservancySoutheast Alaska Conservation Council WildEarth Guardians Hells Canyon Preservation Council

June 20, 2011

Administrator Lisa P. JacksonEnvironmental Protection Agency1200 Pennsylvania Ave., NWWashington, DC 20460

Dear Administrator Jackson:

On May 23, 2011, forty-four members of the U.S. House of Representatives sent you a letter

about a recentNinth Circuit decision,Northwest Environmental Defense Center v. Brown, whichinvolves application of the Clean Water Act to discharges of polluted storm water from loggingroads. Because sixty-six million Americans in 3,400 communities across the Country depend onnational forests for their drinking water, and because native fish populations across the West aredeclining in part due to sediment pollution from logging activities, we write today to provide youwith additional information about the importance of that decision.

The U.S. Forest Service estimates the value of clean water flowing from national forests alone at$7.2 billion annually. Water from the Nations forests also provides habitat for cold water fish,as well as world class aquatic recreation opportunities. Forest watersheds also provide asafeguard against climatic events such as floods and drought.

Unfortunately, logging activities across the West pollute our Nations waters.1 Logging roads inparticular are the primary source of sediment pollution from forestry activities. Logging roadpollution diminishes water quality and harms fish by smothering fish eggs, causing gill damage,smothering food sources like insects, and altering in-stream habitat so streams support fewersalmon, trout, and other native aquatic species. The impacts to salmon alone present the risk ofsignificant economic losses for tourism, the fishing industry, and local communities that dependon those revenues and resources.

The May 23 letter states that theNEDC v. Brown ruling invalidates a 35-year old rule thatexemplified a flexible and effective approach to the regulation of water quality. But the logging

industry has not enjoyed a longstanding categorical exemption from the Clean Water Actsprohibition on unauthorized discharges of pollutants from point sources, as implied. On thecontrary, since 1977 courts have consistently recognized that Congress intended the Clean Water

1 EPA has found that forestry-related sediment is a significant source of water quality impairment to riversand streams nationwide.http://iaspub.epa.gov/waters10/attains_nation_cy.control.


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Administrator JacksonJune 20, 2011Page 2

Act to regulate point source pollution generated by the timber industry.2 Equally important, overtwenty years ago, in 1990, your agency determined that logging companies need to obtainNPDES permits for polluted storm water discharges.

3The decision inNEDC v. Brown did not

make new law; it simply held what other courts have held: the timber industry must obtain

NPDES permits for their discharges of pollutants.

NPDES permits are an appropriate regulatory tool because voluntary best management practices(BMPs) have not been effective at limiting logging road pollution. Although many states haveBMPs for logging roads, those BMPs regulate how and where a road is built but usually do notprevent the direct dumping of polluted water into rivers and streams. In many if not most states,forest road BMPs are voluntary and not based on best available technology. The Oregon roads atissue in theNEDCcase are an excellent example of the failure of state regulatory systems,including BMP programs, to prevent direct discharges of polluted storm water.

Clean Water Act permits are proven, effective, efficient, and manageable by state and federal

agencies. As Congress intended, the Clean Water Act is an extremely effective mechanism forreducing pollution and protecting clean water. Indeed, as you are aware, EPA and state agencieshave decades of experience with NPDES permits because most other industrial and constructionsectors have been required to comply with them since at least 1990.4 Equally important, becauseeach state with a delegated NPDES program will develop its own permits, the permits couldrespond to local needs and incorporate the flexibility mentioned in the May 23 letter.

We share concerns that timber companies remain viable in light of the increasingly highcompetition for housing development. But there are multiple ways of supporting the timberindustry that do not involve allowing logging operations to continue polluting rivers and streams.More to the point made in the May 23 letter, it is the high value of developable land that drives

the conversion of forestland to other uses, not compliance with Congress longstanding policy ofeliminating water pollution.

In the Clean Water Act, Congress declared it is the national goal that the discharge of pollutantsinto the navigable waters be eliminated by 1985. 33 U.S.C. 1251(a)(1). Furthering this goal,over the last several years Congress has appropriated $225 million to fix polluting logging roadsin national forests through the Legacy Roads and Trails Remediation Program. This moneysupports the rural and green economies by creating and maintaining jobs, while improvingsalmon habitat and water quality. NPDES permits will contribute to these efforts by requiringtimber companies and state agencies to take their fair share of responsibility for the problem.

2 Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977) (striking down an EPAattempt to exempt the logging industry from Clean Water Act requirements);League of Wilderness Defenders v.Forsgren, 309 F.3d 1181, 1185-86, 1188 n.6, 1190 (9th Cir. 2002) (holding that EPAs Clean Water Act rules do notexempt the timber industry from the NPDES permit requirement).

3 40 C.F.R. 122.26(b)(14)(ii) (designating facilities classified as Standard Industrial Classification 24,which includes SIC 2411 (Logging)).

4 33 U.S.C. 1342(p); 40 C.F.R. 122.26.


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We would be happy to meet with you or your staff to discuss theNEDCruling and to answer anyquestions. In the meantime, we respectfully request that you consider our views as you prepareyour response to the May 23 letter and any subsequent efforts to amend the Clean Water Act.Given the value of clean water to communities across the country, we request that you and EPA

do all you can to prevent the discharge of polluted storm water from logging roads.

Thank you for considering our views.

Mark RiskedahlExecutive DirectorNorthwest Environmental Defense Center

Andrew J. OrahoskeConservation DirectorEnvironmental Protection Information Center

Ed HopkinsDirector, Environmental Quality ProgramSierra Club

Joan MulhernSenior Legislative CounselEarthjustice

Natalie Roy

Executive DirectorClean Water Network

Jon DevineSenior Attorney, Water ProgramNatural Resources Defense Council

William SnapeSenior CounselCenter for Biological Diversity

Pete Nichols

Western Regional DirectorWaterkeeper Alliance

Mary ScurlockPolicy DirectorPacific Rivers Council

Samuel H. SagePresidentAtlantic States Legal Foundation, Inc.

Bethanie WalderExecutive Director

Wildlands CPR

Nina BellExecutive Director

Northwest Environmental Advocates

Cameron La FolletteLand Use DirectorOregon Coast Alliance

Guido RahrPresident & Chief ExecutiveWild Salmon Center


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Lesley AdamsProgram DirectorRogue Riverkeeper

Steve PederyConservation DirectorOregon Wild

Brett VandenHeuvelExecutive DirectorColumbia Riverkeeper

Shane JimmerfeldExecutive DirectorSiskiyou Project

Brian WegenerWatershed Watch CoordinatorTualatin Riverkeepers

George SextonConservation DirectorKlamath Siskiyou Wildlands Center

Rick EichstaedtStaff AttorneySpokane Riverkeeper

Alex BrownExecutive DirectorBark

Cindy HawsExecutive DirectorUmpqua Watersheds, Inc.

Bill BakkeExecutive DirectorNative Fish Society

Josh Laughlin

Campaign DirectorCascadia Wildlands

Teresa Huntsinger

Program DirectorOregon Environmental Council

Dave WerntzScience and Conservation DirectorConservation Northwest

Joan CrooksExecutive DirectorWashington Environmental Council

Bob DingethalExecutive Director

Gifford Pinchot Task Force

Kurt BeardsleeExecutive Director

Wild Fish Conservancy

Jill SilverExecutive Director10,000 Years Institute

Mike PedersenExecutive DirectorThe Lands Council


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John WoolleyPresidentOlympic Forest Coalition

Gary MacfarlaneExecutive DirectorFriends of the Clearwater

Ernie ReedCouncil ChairHeartwood

Leigh HaynieStaff AttorneyAtchafalaya Basinkeeper

Karen Patterson GreeneSwimmable Charles CoordinatorCharles River Conservancy

Lindsey KetchellExecutive DirectorSoutheast Alaska Conservation Council

John HorningExecutive DirectorWildEarth Guardians

Greg DysonExecutive DirectorHells Canyon Preservation Council

6-20-11 letter to administrator jackson

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