Washington doesn’t need to regulate rain

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. 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...more

Reports say the Supreme Court will decide Friday about taking the case.