On March 20, the U.S. Supreme Court ruled 7-1 to overturn the Ninth Circuit Court’s decision that forest roads are subject to the National Pollutant Discharge Elimination System (NPDES) requirements of the Clean Water Act. This is a significant victory for public timber purchasers and others who depend on federal forest lands, as well as for state and private forestland owners.
Last fall, AFRC filed an amicus brief with the Supreme Court on the implications of the decision for federal lands. We were joined on the brief by Public Lands Council, National Cattlemen’s Beef Association, Montana Wood Products Association, Arkansas Forestry Association, Federal Forest Resource Coalition, Intermountain Forest Association and Minnesota Forest Industries.
In its decision, the Court found that Environmental Protection Agency (EPA) interprets its own regulation to exclude logging roads from NPDES requirements and that, because the agency’s interpretation is reasonable, it should be accorded deference by the courts. Justice Kennedy, writing for the majority, referred to the type of Best Management Practices (BMPs) contained in Oregon’s statutes and forest practices rules as justification for EPA’s actions in not requiring permits.
Oral arguments took place December 3, 2012. On November 30, EPA finalized a rule (published in the Federal Register December 7) declaring that forest roads are not industrial activities subject toNPDES permits. The Court held that the rule amendment did not make the case moot because there was a possibility the environmental organizations would go after the industrial defendants for monetary damages based on unlawful discharges prior to the effective date of the amendment. By overturning the Circuit Court’s ruling, the decision eliminated that threat.
The Northwest Environmental Defense Center (NEDC) filed a petition in the Ninth Circuit in early January seeking court review of the amended rule. There is no doubt NEDC intends to continue to pursue every available avenue to require permits for logging roads. It is apparent that the best solution to this problem would be passage of a bill like the Silviculture Regulatory Consistency Act, which was
introduced in the last Congress as HR 2541 and S 1369, to make it clear that Congress intends for forest roads to be regulated under BMPs, rather than via permits. Use of BMP’s has resulted in consistent improvements over the last 30 years in control of sedimentation from forest roads based on the type of state statutes and rules noted in the Supreme Court’s ruling.
Our congratulations and thanks to the State of Oregon, Georgia-Pacific West, Hampton Tree Farms,Stimson Lumber, Swanson Group, American Forest and Paper Association, Oregon Forest Industries Council and Tillamook County, who petitioned to have the Ninth Circuit ruling overturned and to the many amici who weighed in to make this victory for common sense a reality.