At an April 29 hearing, a federal judge declined to dismiss remaining litigation linked to questions about the regulation of “forest roads” through Clean Water Act permitting—in spite of last year’s Supreme Court ruling and the provisions included in this year’s Farm Bill. Nonetheless, U.S. District Judge Anna Brown’s comments can hardly have encouraged the plaintiff (Northwest Environmental Defense Center). According to the summary we have seen, Judge Brown found NEDC’s legal theories poorly presented, and her reason for keeping the case open was to give the plaintiff a chance to attempt to clarify them. NEDC has until mid-July to submit new court documents, and an oral argument is scheduled for August 14.
The basis of NEDC’s pursuit of the case appears to be that “logging roads” that provide immediate access to “rock crushing, gravel washing, log sorting, and log storage facilities” may still be subject to Clean Water Act permitting, a contention NEDC thinks it can demonstrate based on standing Environmental Protection Agency rulings outside of the scope of recent Supreme Court and Congressional action. The defendants’ attorney has pointed out that the plaintiff did not raise that issue in its original suit and has no procedural basis to raise it now.
Submitted by Neil Ward, Forest Resources Association.