Tuesday, May 1, 2012

EPA Moves Toward Regulation of Forest & Silviculture Road Runoff

In a move that will interest forest landowners, the Environmental Protection Agency is working toward regulation of forest and silviculture runoff. Congress has stayed NPDES permitting for forest roads until October 1, 2012 through its Omnibus Appropriations Bill. Even so, Bloomberg is reporting that EPA has written a draft notice of intent to regulate discharges from forest roads if the roads collect stormwater in ditches, culverts, or other measures to channel runoff. The article is not yet available for free online.

EPA sent the notice to the White House Office of Management and Budget for review, but it has not yet made it public. EPA stated that it "is considering flexible options including non-permitting options that recognize the vastness, diversity, and complexity of the nation's logging road network and existing effective federal, state, local, and tribal best management practice frameworks." This is good news, since some have argued that the Ninth Circuit's ruling could actually lead to worse water quality. Ultimately, EPA will need to seek public comments on any rule it develops under the Clean Water Act to regulate forest and silviculture runoff under the NPDES permitting program.

EPA's action is a result of an August 2010 decision by the Ninth Circuit that struck down EPA's so-called Silvicultural Rule. The Ninth Circuit issued another opinion reaffirming that decision in May 2011. Look for my upcoming article explaining the history of this dispute and Ninth Circuit's opinion soon.

Edit May 2, 2012: Although the U.S. Supreme Court usually reviews cases after it asks the Solicitor General to brief them, one news source reports that the Solicitor General will urge the Supreme Court not to take the petition.