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Our Klamath Basin Water Crisis
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 NEDC  lawsuit could shut down eleven million acres
of Oregon's privately owned forest land

Senator Doug Whitsett
R- Klamath Falls, District 28

Phone: 503-986-1728 900 Court St. NE, S-303, Salem, Oregon 97301
Email: sen.dougwhitsett@state.or.us
Website: http://www.leg.state.or.us/whitsett
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E-Newsletter 2/6/12
The Northwest Environmental Defense Center (NEDC) is located in the Lewis and Clark University Law School in Portland, Oregon. The independent non-profit organization was founded by law school professors, alumni and students in 1969 allegedly to protect the environment and the natural resources of the Northwest. It has a long history of initiating litigation to preserve, and therefore to often deny the use of, Oregonís abundant natural resources.

The citizen suit provision of the Clean Water Act provides that any citizen may commence a civil action on his own behalf against any person alleged to be in violation of the Act. A few years ago NEDC used that provision to sue the Oregon State Forester and various timber companies contending that they have violated the CWA. NEDC alleges that the forest owners must secure National Pollutant Discharge Elimination System (NPDES) permits from the Environmental Protection Agency (EPA) for mostly rainwater runoff that flows from logging roads on the Tillamook State Forest into ditches, culverts and channels that eventually discharge into forest streams and rivers. As I understand the basic premise of the lawsuit, it contends that storm water that accumulates over large areas as diffuse "non-point sources" of runoff suddenly become a "point source" when the flow is channeled into a culvert under a logging road.

The District Court reached the common sense conclusion that storm water runoff does not suddenly change in volume or composition when it is diverted into a culvert under a logging road. The Court ruled that the non-point source runoff is exempt from the NPDES permitting requirement under the Silvaculture Rule. That rule was developed by EPA under the CWA specifically to regulate runoff associated with forest management activity.

NEDC appealed the District Court decision to the United States Court of Appeals for the Ninth Circuit. The federal appellate court reversed the district court ruling concluding "that storm water runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required".

If allowed to stand, this appellate ruling has the potential to devastate what is left of Oregonís timber industry. This decision would create virtually insurmountable economic barriers to timber harvest on both private and state owned land. Just the cost of acquiring the federal NPDES permits for potentially thousands of "point source" culvert discharges would be exorbitant. Moreover, the prospective cost of defending each permit against citizen challenge through civil lawsuits brought by organizations such as NEDC would be truly prohibitive.

In jeopardy is the preservation of Oregonís nearly eleven million acres of privately owned forest land. The opportunity for reasonable economic returns on investment is necessary to preserve any business including our forest product industries. What is more, active management of those lands for forest production is essential to provide wildlife habitat as well as to maintain access for hunters, anglers and wildfire suppression first strike capabilities. One motivation for the lawsuit may be to remove people from the forests by reducing or eliminating the roads that access the forests.

More than 120 thousand family wage jobs are supported by Oregonís working forests. Those privately owned forests create timber product sales of nearly $12 billion and support private sector payrolls in excess of $4 billion. Timber harvest, family wage jobs and private sector payrolls supported by businesses that harvest state owned forests are also in danger of being extinguished. In fact, those state owned forests are the first named target of the NEDC litigation.

"Environmentalist" organizations like NEDC have succeeded in virtually closing our federal forests to timber harvest. The direct consequence of litigation concerning the allegedly endangered Northern Spotted Owl is a 90 percent reduction in timber harvest from federal lands. That near elimination of federal timber harvest has resulted in virtual cultural genocide for many timber dependent rural communities. The NEDC suit appears to be focused on completing that destruction of Oregonís timber products industry.

Congress included a temporary funding restriction in the 2011 omnibus Appropriation Act to stop the permitting process by prohibiting EPA from funding a forest roads permit system. Bi-partisan legislation was also filed in both congressional chambers to adopt into public law existing EPA Silvaculture rule that treats diffuse runoff from precipitation as non-point source.

The Ninth Circuit Court "Northwest Environmental Defense Center v. Brown" decision has been appealed to the U.S. Supreme Court by the State of Oregon and other defendants. The Supreme Court has asked the Solicitor General for help in deciding whether to review the petition challenging the appellate court decision by determining the federal governmentís views on the issue.

We have the opportunity to both help persuade the Supreme Court to review the Circuit Court ruling as well as to encourage Congress to adopt a common sense amendment to correct the problem created by the NEDC lawsuit.

First we should write to ask the Solicitor General and the U. S. Supreme Court to review the NEDC v. Brown appellate court ruling.

Second, we should write and call our congressional delegation to urge them to amend the CWA by adopting the Silvaculture rule language into public law. Congress has already specifically exempted agricultural irrigation return flows from the NPDES requirement in 1997. They should do the same for forest practices.

Please remember, if we do not stand up for rural Oregon, no one will.

Best Regards,



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