[Congressional Record Volume 157, Number 105 (Thursday, July 14, 2011)]
[Senate]
[Pages S4610-S4611]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CRAPO (for himself, Mr. Wyden, Mr. Risch, and Mr. Begich):
  S. 1369. A bill to amend the Federal Water Pollution Control Act to 
exempt the conduct of silvicultural activities from national pollutant 
discharge elimination system permitting requirements; to the Committee 
on Environment and Public Works.
  Mr. CRAPO. Mr. President, over the last several months, this body has 
been focused on issues pertaining to our economy, such as the ailing 
jobs market and our debt and deficits. That is as it should be. 
However, while these important issues have commanded most of our 
attention here in the United States Senate, that is not to say that 
other matters and conflicts have suddenly taken a back seat to them. 
Even as we vigorously debate our economic future, home-state and 
regional issues continue to command our attention. It is one of those 
regional issues that brings me to the floor today.
  Two months ago, a three judge panel of the U.S. Court of Appeals for 
the 9th Circuit handed down a final decision that could have far 
reaching negative impacts on public and private forests, and the 
communities that rely on them, throughout the United States. In the 
case of Northwest Environmental Defense Center v. Brown, the Court 
ruled that logging road runoff when managed with a system of ditches 
and culverts and deposited into rivers and streams qualifies under the 
Clean Water Act as point source pollution. This means that storm water 
when mixed with dirt and rocks will now be subject to some of the most 
stringent environmental protection laws in the United States. America's 
Federal forests are already heavily litigated, but with one fell swoop, 
this decision threw out over 35 years of precedent, opening the door 
for even more litigation on Federal forest lands, and subjecting 
private and state forest lands to the same specter.
  There was a time when forest jobs supported millions of Americans and 
their communities. But a lot has changed since then. Endless 
litigation, cheap imports, disease and a general shift in Federal 
forest management policy have drastically changed the landscape for 
forest jobs and the families and communities that rely on them. Working 
on the forests used to make up a considerable amount of the tax base in 
many rural communities, particularly in my State of Idaho. However, 
that has shrunk dramatically in recent decades.
  Forest communities that were once prosperous now find themselves in a 
state of perpetual economic jeopardy, with young people searching for 
employment elsewhere and tax bases that can barely cover the cost of 
basic public services. This has become so dire that in 2000, Congress 
had to pass legislation to provide funding to rural communities with 
Federal public lands to make up for lost revenues from timber harvests 
on those lands.
  Given all of this, I am disappointed that another impediment is being 
added to the economic survival of our forest communities.
  This decision will impact both public and private forests. In the 
case of Federal forests, we have millions upon millions of acres that 
are in need of active management and restoration. Our Federal forests 
have suffered from under management, disease, wild fires and other 
factors, and to address these problems, the U.S. Forest Service needs 
to be able to get to work on much needed fuels reduction, thinning and 
other forest health projects. But litigation has made that very 
difficult, and this decision is only going to make it worse.
  Then, there are private forests. The people who own, manage and work 
on these private forests need roads to have access to them. But, this 
judicially-mandated permit requirement will inevitably lead to 
increased costs for businesses that are already operating on the 
margins. Furthermore, this decision will impose the Federal Government 
into the management of private lands as these permits, even if issued 
by a State agency, will be subject to Environmental Protection Agency 
oversight under the Federal Clean Water Act, as well as citizen suits 
that are intended to further reduce timber harvests.
  We need to do something about this unfortunate and unwise decision 
out of the Ninth Circuit Court of Appeals. As such, I am introducing 
legislation along with my friends Senator Wyden, Senator Risch and 
Senator Begich to overturn it. This legislation is entitled the 
Silviculture Regulatory Consistency Act of 2011. Our forests and the 
communities that they have long supported are already in considerable 
jeopardy, and we need to do everything in our power to help these rural 
communities. Passing this legislation is only one step in that process, 
but it is a very necessary one.
  I hope that the Senate can pass this bipartisan legislation as soon 
as possible.
  Mr. WYDEN. Mr. President, today I am joining with my colleagues from 
Idaho, Senator Crapo and Senator Risch, and my colleague from Alaska, 
Senator Begich, to correct a regulatory problem that left uncorrected 
will bury private, State and tribal forest lands in a wave of 
litigation. If we have learned anything from the court battles that 
have contributed to the widespread gridlock and mismanagement of our 
Federal forests, it is that this is not the best path to ensure our 
forests' future and should be considered only as a last resort. Now 
those battles threaten to spill over onto private forest lands.
  Since the advent of the Clean Water Act, Democratic and Republican 
administrations have held that most silviculture activities were 
nonpoint sources for purposes of the act and would be best regulated at 
the State level, under the States' individual forest practices laws. 
Under this rule, known as the ``silviculture rule, `` silvicultural 
activities, such as nursery operations, site preparation, reforestation 
and subsequent treatment, thinning, prescribed burning, pest and fire 
control, harvesting operations, surface drainage, or road construction 
and maintenance, from which there is natural runoff, were regulated 
through the Clean Water Act by States best management practices.
  This rule for forest roads has now been explicitly invalidated by the 
Ninth Circuit Court of Appeals, which--in a series of two decisions--
implicitly undermined the long-held ``silvicultural rule,'' stemming 
from

[[Page S4611]]

litigation over the use of forest roads in Oregon State-owned forests.
  According to the Ninth Circuit, stormwater runoff collected and 
directed by a system of ditches and culverts creates a discrete point 
source and therefore, must be regulated as industrial stormwater 
runoff. This judicial interpretation of the Clean Water Act means that 
every source of runoff on forest roads will now require an industrial 
stormwater runoff permit. Not only will new roads need to be permitted, 
but the hundreds of thousands of miles of existing roads in Oregon and 
around the country, on both public and private lands, will now need to 
be reviewed and issued permits.
  If this one court's decision to overturn 35 years of widely-accepted, 
Environmental Protection Agency, EPA, policy is allowed to stand, 
private, State, and tribal forest owners will also likely be subjected 
to litigation as part of the permitting process or through lawsuits 
under the citizen suit provisions of the Clean Water Act. The outcome 
could well deny States the use of their forests which they depend on to 
pay for schools and services, while significantly depressing the 
investment required to sustain private forestry.
  If this decision is allowed to stand, every use of forest roads will 
require permitting and will therefore be subject to challenge by 
citizen lawsuits. This will not only overburden landowners and managers 
in the Ninth Circuit states by adding significant compliance and 
permitting costs, it will create an opportunity for administrative 
appeal and litigation every time a permit is approved.
  Initially, the court's ruling will apply solely to my region of the 
country, but we can expect lawyers to quickly beat a path to other 
Federal courts and the EPA itself, seeking to extend the ruling to all 
other forested regions of the country, and giving an immediate and 
perhaps permanent competitive advantage to our foreign competitors who 
have far lesser environmental standards and enforcement.
  The fact of the matter is that forests and forest roads--even private 
ones--have multiple economic and environmental uses and users--from 
wildlife habitat to recreation to timber production--over decades long 
growing and harvesting cycles. The ``silviculture rule'' existed 
because forestry is different from other industries, even other 
agricultural production. This is why, in this instance, I believe the 
courts have gone too far in reinterpreting the law and why legislation 
is needed to make the long-accepted ``silvicultural rule'' the legal 
basis for Clean Water Act regulation of forestry practices.
  The Clean Water Act is one of the cornerstones of environmental 
protection. In the past two Congresses, I cosponsored the Clean Water 
Restoration Act because I believed that the U.S. Supreme Court went too 
far in reinterpreting decades of Clean Water Act law by excluding 
wetlands and intermittent streams that had long been protected under 
that law. Here too, I believe that the courts have gone too far in 
reinterpreting what has been a longstanding understanding of how 
silvicultural activities should be regulated. The Ninth Circuit 
concluded that only Congress can authorize EPA's original reading of 
the law. Senators Crapo, Risch, Begich and I are introducing 
legislation today in response to that conclusion.
  That is not to say that the persons who orchestrated this litigation 
were not well-intentioned in their desire to address the water quality 
issues that can arise from silviculture, as they can in virtually every 
other agricultural activity. Rather, I believe they had the best of 
intentions. In fact, I share their intentions. I have labored for 
decades and will continue to work to address the poor condition of 
forest roads on Federal lands. I will also be the first to argue that 
the Federal Government has much to do in that regard. Efforts can also 
be made on State and private lands. In many instances, what is needed 
is simply more technical assistance and financial incentives to help 
landowners and managers that are seeking to do the right thing. I 
certainly care about keeping the pristine quality of our streams and 
the impacts that sediment can have on salmon and aquatic creatures. It 
is part of the reason why I have championed wilderness and wild and 
scenic river legislation to protect Oregon's special places, including 
its beautiful waterways.
  But I can't agree with their decision to first fight this out in 
court. Their litigation tries to impose an outcome on my region without 
ever attempting to address the concerns and needs of the thousands of 
people in my State who earn their living as responsible stewards of 
private forest land. Oregon is still struggling to come back from the 
economic crisis and many of our forested counties continue to suffer 
from double digit unemployment. Where will the 120,000 people in Oregon 
who make their living on private forest land go when private lands 
experience the same gridlock as their Federal land counterparts? How 
will small woodlot owners in Oregon--mostly mom and pop investments--
survive when subjected to Federal regulation and lawsuits for the first 
time in our State's history? How many millions of acres of private, 
shareholder-owned forest land will be converted to nonagricultural 
purposes when companies are no longer able to carry out needed forest 
management? To my knowledge, the litigants did not make a meaningful 
effort to address any of those challenges before initiating the lawsuit 
that now threatens to throw my State into a dangerous economic 
trajectory.
  I should point out that this issue transcends partisan concerns, as 
evidenced by the prominent Democrats who have found common ground with 
Republicans on this issue. Oregon's Governor, John Kitzhaber, one of 
the most prominent environmental champions in the Nation, has 
consistently fought against the Northwest Environmental Defense Center 
ruling and continues to do so. Senator Begich, who is known for his 
thoughtful and balanced approach to natural resource issues, joins me 
as an original cosponsor. On the House side, I am joined by Democratic 
Congressman Kurt Schrader, who knows better than most the unintended 
consequences of well-intentioned, but poorly aimed efforts at 
regulation.
  To my friends in the environmental community who raise legitimate 
concerns about a range of issues surrounding this policy I encourage 
you to sit down with us in a dialogue, at both the Federal and State 
levels. Bring your ideas for how we can monitor and protect water 
without sacrificing what remains of Oregon's forest industry. You will 
be heard and I stand ready to work with you. But it is not enough to 
simply dictate outcomes. We have to first look for solutions that avoid 
the epidemic of litigation and appeals that threaten the sustainability 
and survival of our timber industry. You are, of course, right to 
expect that we arrive at those solutions within a reasonable period of 
time.
                                 ______