The National Alliance of Forest Owners (NAFO) agreed with the objective of a U.S. Environmental Protection Agency (EPA) proposal to manage forest roads under the Clean Water Act (CWA) using state administered Best Management Practices (BMPs) rather than industrial permits. Despite agreement with the objective, NAFO expressed the need for legal certainty to ensure a BMP approach is not undone by the U.S. Court of Appeals for the Ninth Circuit.
“Forest owners, the EPA and Congress all agree that using best management practices rather than permits is the right policy for forest roads, said Dave Tenny, NAFO President and CEO. “This has been a Clean Water Act success story for more than 35 years. EPA’s effort to preserve its existing policy is a step in the right direction.”
EPA’s Notice of Intent for a rulemaking published in today’s Federal Register seeks to maintain EPA’s long-standing approach of using BMPs, rather than permits to regulate forest road systems under the CWA. The EPA action responds to a novel ruling from the U.S. Court of Appeals for the Ninth Circuit in NECD v. Brown holding, for the first time in CWA history, that forest roads are “point sources” of water pollution requiring industrial discharge permits typically used for factories and sewage plants. While the EPA action addresses whether forest roads require permits, it does not address the Ninth Circuit’s determination that forest roads are point sources. The Supreme Court will decide whether to review the Ninth Circuit ruling by mid-June, after receiving input from the Solicitor General which is expected by Friday, May 25.
“While there is broad agreement on the policy objective, we need legal certainty to make it stick,” Tenny stated. “We know litigators lie in wait to bring anything EPA does back to the Ninth Circuit as quickly as possible, because the court has little regard for Supreme Court precedent or EPA’s longstanding policy. Last year Congress and the Administration provided short-term relief through bipartisan legislation preventing the Ninth Circuit ruling from taking effect. If the Supreme Court reviews the case, Congress and the Administration must extend this legislation for another year. If the High Court does not review the case, they must make it permanent. That is the only way to provide certainty against Ninth Circuit overreaching.”
Twenty-six state attorneys general have filed a brief asking the Supreme Court to review the Ninth Circuit decision. Letters to the Administration from the U.S Senate and House of Representatives also urge defense of the EPA’s rules before the Court. In December Congress and the Administration protected EPA’s historical treatment of forest roads as nonpoint sources by taking action in the 2012 Omnibus Appropriations Act. The effort, achieved with bipartisan support in both the Senate and House, prevents the Ninth Circuit’s ruling from taking effect until October 1, 2012.
Economic impact studies reveal that Clean Water Act permits for forest roads would impose significant costs on forest owners, loggers, haulers and mills causing the loss of tens of thousands of jobs. Additionally, new permit requirements would expose forest management to substantial legal costs associated with challenges and lawsuits from private citizens.
“If allowed to stand the Ninth Circuit approach will cost hundreds of millions of dollars, kill thousands of jobs and invite protracted litigation over permit technicalities without any corresponding environmental benefit. Federal, state, tribal and private resource professionals agree that complicated and costly federal permits will not make our rivers and streams any cleaner,” Tenny concluded.
Shortly after the CWA was enacted in 1972, the EPA recognized forest management activities as nonpoint sources most effectively regulated under state-administered BMPs. BMPs are locally designed to adapt to the variety of forest conditions across the country and provide flexibility to address concerns if and when they arise. The success of BMPs enables the EPA to rank forestry as a “minor contributor” to water pollution.