From Forest Landowners' Tax Council
Information About Forest Roads Decision By the Supreme Court March 20, 2013
The forestry community today welcomes a U.S. Supreme Court decision reversing a May 2011 ruling from the U.S Court of Appeals for the Ninth Circuit (NEDC v. Brown) that forest roads used for timber harvest require Clean Water Act (CWA) industrial stormwater discharge permits typically applied to factories and other facilities. The Court’s decision validates EPA’s longstanding policy that rainwater runoff from forest roads is best addressed through state adopted best management practices.
Although the decision overturns the Ninth Circuit ruling, federal, state, county, tribal and private forest owners nationwide remain vulnerable to new litigation, such as a recently filed case in the Ninth Circuit challenging the EPA December 2012 amendment to its stormwater discharge rule clarifying that forestry operations do not require CWA permits.
Green plaintiffs have already teed-up the next round of lawsuits and told the Supreme Court they will not stop until permits are required. The best way to break the litigation cycle and resolve this issue is through legislation clarifying once and for all that forest roads are not point sources.
In January of 2013, plaintiffs filed a lawsuit in the Ninth Circuit challenging EPA’s new rule, contending that forest roads are point sources under the statute. Many members of the forestry community intervened in the case to help preserve EPA’s 37-year policy defining forestry and forest roads as nonpoint sources most effectively addressed at the state level through best management practices.
Congress must give clear direction that the Ninth Circuit may not legislate from the bench. Because EPA’s new industrial stormwater rule applies nationally, the Ninth Circuit’s decision on the rule will apply nationwide, causing considerable uncertainty for state and local governments and forest owners throughout the country. So, a broad coalition of groups and bipartisan leaders in Congress are working to enact permanent legislation that will preserve the existing EPA regulations and provide long-term legal certainty to federal, state, county, tribal and private forest owners.