Governor Kitzhaber today requested the Oregon Attorney General's office to ask the U.S. Supreme Court to review the Ninth Circuit Court of Appeals decision that forest roads require individual water discharge permits under the federal Clean Water Act.
Governor Kitzhaber considers certain portions of the ruling by the federal Court of Appeals to be legally flawed and is concerned that the ruling could create increased economic, social, and environmental instability across Oregon's important forest management sector. Specifically, the Governor believes the Ninth Circuit's ruling wrongly mandates a permitting approach that should have been left to the discretion of the U.S. Environmental Protection Agency and states and effectively overturns a rule that has been in place for 35 years.
"The Clean Water Act stipulates that challenges to rules adopted to implement the act must be brought within 120 days of the adoption of the rule," Kitzhaber said. "Allowing a challenge to proceed now, in one state, 35 years after the rule's adoption, throws the timber industry and agencies into confusion; upsets established expectations; and will lead to different rules in different parts of the county -- contrary to congressional intent."
Oregon Board of Forestry chair John Blackwell agreed with the Governor's decision to ask the Supreme Court to review the ruling.
"Clean water is a crucial benefit of well-managed forests," said John Blackwell. "Roads are critical to that management, and we need sound rules about the construction and use of roads in forests. But that's a matter best addressed by natural resources agencies, not the courts."
The Governor strongly believes that improvements in water quality are needed, but that those improvements will most effectively be achieved through constructive interactions between policy makers, regulatory agencies, forest landowners and managers, and other interests.
"I'm not arguing with the outcome sought by the plaintiffs in this litigation: to improve forest road management and curtail impacts that result in harmful discharges to streams and degradation of water quality and fish habitat," said Governor Kitzhaber. "However, we are at a point in the history of our management of forest lands where we need to develop stability, consensus, and collaboration, not management by lawsuit. Dramatically expanding citizen lawsuits risks accelerating the conversion of our forest land to development, costing us both in terms of harvest revenue and environmental values, as well."
The Oregon Department of Justice will prepare a petition for the Supreme Court's review in the coming months.
Meanwhile, U.S. Senator Ron Wyden has decided to pursue a legislative response to the Ninth Circuit's decision. While Governor Kitzhaber recognizes that a narrow amendment to the Clean Water Act may ultimately be necessary, he does not believe that this should be our starting point. "Before seeking a legislative solution we should fully explore an administrative resolution of the issues created by the Ninth Circuit's decision, including approaches that improve water quality while minimizing or avoiding the requirement for individual permits," said Governor Kitzhaber.