The National Alliance of Forest Owners (NAFO) is urging the U.S. Environmental Protection Agency (EPA) to let the Supreme Court clarify the law before proceeding with rulemaking on the application of the agency’s point source stormwater rules to forest roads. The Supreme Court is reviewing the ruling by the U.S. Court of Appeals for the Ninth Circuit that forest roads used for timber harvest are “point sources” requiring special industrial discharge permits typically reserved for sewage plants and factories.
Although we all agree that the Ninth Circuit decision was wrong, EPA’s process puts the cart squarely in front of the horse. Before proceeding with a rulemaking to respond to a flawed Ninth Circuit decision, EPA should allow the Supreme Court to declare whether such a rulemaking is even necessary. Otherwise the agency unnecessarily creates more legal confusion and uncertainty while providing yet another target for litigators who will jump at the first opportunity to challenge the final rule before the Ninth Circuit.
NAFO recently filed comments in response to EPA’s proposed rule, published September 4, which aims to clarify that logging is not an industrial activity under the agency’s point source stormwaterrules and thus not subject to the statute’s mandatory point source permit (NPDES) requirement.
The policy objective here is to settle this issue with legal certainty. A rulemaking at this juncture will not accomplish that. Only the Court or Congress can settle the most fundamental question of law, which is whether forest roads are nonpoint or point sources. EPA, the Solicitor General, 31 attorneys general, and a broad coalition of interests across the country all contend that they are not. Our united effort, therefore, should be to seek the solution that will settle the legal question once and for all. Once resolved, there will be no need to amend the stormwater rules, because those rules apply only to point sources.
NAFO is working with a broad coalition of groups and Congress to enact permanent legislation that will preserve the existing EPA regulations and provide long-term legal certainty to federal, state, tribal and private forest owners.
NAFO is an organization of private forest owners committed to advancing federal policies that promote the economic and environmental benefits of privately-owned forests at the national level.NAFO membership encompasses more than 80 million acres of private forestland in 47 states. Working forests in the U.S. support 2.5 million jobs. To see the full economic impact of America’s working forests, visit www.nafoalliance.org/economic-impact-report.