The National Alliance of Forest Owners (NAFO) filed comments with the U.S. Environmental Protection Agency (EPA) expressing support for the objective of a proposed regulation in the agency’s May 23 Notice of Intent (NOI) for addressing rainwater runoff from forest roads, but raising concerns that EPA’s approach will continue or worsen the current legal uncertainty surrounding the issue.
The NOI was in response to a ruling out of the U.S. Court of Appeals for the Ninth Circuit in May 2011 that forest roads are “point sources” of water pollution requiring industrial discharge permits typically applied to factories and sewage plants.
“The EPA has the right intentions in their attempt to reiterate and clarify their longstanding position that forest roads do not require permits under their regulations, but no matter what the EPA does, the litigators will sprint to the Ninth Circuit seeking to overturn it,” said Dave Tenny, NAFO president and CEO. “Until now the Ninth Circuit has not shown appropriate deference to EPA. It is a risky approach to assume that the court will be more deferential going forward. The only means to end the cycle of litigation and achieve legal certainty is for the Supreme Court to overturn the Ninth Circuit decision or for Congress to act.”
A decision from the Supreme Court on whether or not it will review the case is imminent. Despite recommending that the high court not review the case, the Solicitor General, along with 29 state attorneys general, and bipartisan members of the U.S. Senate and House of Representatives, agreed that the Ninth Circuit ruling was wrong in overturning the EPA’s longstanding and successful policy for managing forest roads under the Clean Water Act (CWA).
Congress and the Administration joined forest owners to prevent the Ninth Circuit ruling from taking effect last December in the Fiscal Year 2012 Consolidated Appropriations Act, but the solution expires September 30, 2012.
Shortly after the CWA was enacted in 1972, the EPA recognized forest management activities as non-point sources most effectively regulated under state-developed best management practices(BMPs). BMPs are designed to adapt to the various forest conditions in a state and to provide forest owners the flexibility to address site-specific conditions. The success of BMPs enables the EPA to rank forestry as a “minor contributor” to stream and river impairment.
“The EPA highlighted in its NOI the importance of BMPs in meeting federal Clean Water Act goals. In the months ahead EPA will review whether to take any action with respect to BMPs. Resource professionals, state agencies, forest owners, and other experts across the country agree that BMPsare not broken and do not need to be fixed. The best place for EPA to focus its efforts is on making sure the states have the resources necessary to maintain and, where possible, improve an already very effective BMP program,” said Tenny.
For more information please visit the National Alliance of Forest Owners.