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Forest Landowners & Farmers need to take notes

Do you want EPA to regulate Rain? In May, the 9th Circuit determined that rainwater draining from forest roads into local streams, rivers and lakes is “point source pollution.” As such, it must be regulated in the same way effluent from sewage-treatment plants is regulated. Several lawsuits had been filed after the 9th Circuit’s decision. If Washington had its way, what’s next?

From Washington times:

Washington Doesn’t Need To Regulate Rain

Supreme Court has a chance to stop judicial folly

By Jim Petersen | Tuesday, December 6, 2011

If the Supreme Court declines to review it, a recent ruling from the 9th U.S. Circuit Court of Appeals in San Francisco will put federal courts into the business of managing every acre of privately owned timberland in America. Farmers beware. You could be next. In May, the 9th Circuit determined that rainwater draining from forest roads into local streams, rivers and lakes is “point source pollution.” As such, it must be regulated in the same way effluent from sewage-treatment plants is regulated. To make a long story short, rainwater that accumulates alongside logging roads has become a new target of environmental litigators. Several lawsuits were filed within days of the 9th Circuit’s decision.

The court made this determination despite the fact that the Environmental Protection Agency (EPA) has insisted for 35 years that requiring “point-source” permits is unnecessary to protect the environment and is even harmful. In deciding as they did, the judges overturned a long-standing rule that, within reason, the federal judiciary must defer to federal agencies in interpreting laws they enforce.

The main culprits here are the lowly drainage ditch and the only slightly more fashionable culvert, a steel cylinder buried beneath the road surface that directs rainwater away from the road, reducing the threat of flood-caused soil erosion. It is this rainwater that the three-judge panel thinks the federal government must regulate.

Many Americans don’t know that drainage ditches and culverts don’t pollute water. I know that because I grew up in northern Idaho’s great woods and have been fly-fishing in the West for more than 50 years. God only knows how many times I’ve stuck my thirsty mug in a river or stream on a hot summer afternoon, but I can tell you that gin-clear water passed through countless culverts, under dozens of bridges and alongside miles of forest roads before it reached my parched lips.

By instructing the EPA to oversee every ditch and culvert that runs alongside a forest road, the 9th Circuit is subjecting public and private timber landowners to an unnecessary and costly regulatory labyrinth that won’t make water any more suitable for fish and wildlife than it is now. Worse, every project, no matter its insignificance or urgency, will be appealed and litigated by environmental groups that oppose economically productive use of the nation’s forests.

The economic impact of this case is so significant that the attorneys general in 26 states have filed friend-of-the-court briefs urging the Supreme Court to review the decision, as have the Pacific Legal Foundation, famous for its private property rights advocacy, and several forest industry groups that represent forest landowners large and small. Sen. Ron Wyden, Oregon Democrat, also has weighed in, declaring that letting the court’s decision stand “would shut down forestry on private, state and tribal lands” wherever it is applied.

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