Monday, May 28, 2012

Forest Roads Update: EPA Plans Logging Road Exemption; Solicitor General Recommends Supreme Court Deny Review

As my readers know, the U.S. Supreme Court is expected to announce by the end of the summer whether it will review a decision by the U.S. Court of Appeals for the Ninth Circuit. Nw. Envtl. Defense Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). The Ninth Circuit struck down EPA's Silvicultural Rule, finding that forest roads were point sources subject to Clean Water Act permits, contrary to 35 years of EPA interpretation otherwise. Decker v. Nw. Entl. Defense Ctr., U.S. No. 11-338; Ga.-Pac. W. Inc. v. Nw. Entl. Defense Ctr., U.S. No. 11-347. The Court recently asked the U.S. Solicitor General whether it should review the Ninth Circuit’s decision.

The Solicitor General recommended against review. The Solicitor General believed the Ninth Circuit erred in not deferring to EPA’s longstanding interpretations of the Clean Water Act and its own Silvicultural Rule. Even so, the Solicitor General recommended against review because of steps taken by both Congress and EPA to address the practical effects of the Ninth Circuit’s decision.

Just before the Solicitor General filed its brief, EPA published a Notice of Intent to "Revise Stormwater Regulations To Specify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads and To Seek Comment on Approaches for Addressing Water Quality Impacts From Forest Road Discharges." In the notice, EPA stated that it will “consider a range of regulatory and non-regulatory approaches and determine which forest road discharges (if any) should be regulated under 402(p)(6)” of the Clean Water Act. Discharges from logging roads, however—a subset of forest roads—will not be considered discharges “associated with industrial activity” under section 402(p) of the Clean Water Act requiring a NPDES permit. EPA’s stated "the effect of this revision would be to remove any obligation for an owner or operator of a logging road that has discharges of stormwater to waters of the United States to seek coverage of the discharge under the Stormwater Multisector General Permit and to comply with that General Permit or to have an individual permit under section 402 of the Clean Water Act for such a discharge." Thus, the notice only addresses the permitting of logging roads, not the entire category of forest roads.

While recognizing that Congress has stayed NPDES permitting for forest roads until October 1, 2012, EPA stated it would move forward expeditiously with studying further the water quality impacts of forest roads, the category broader than logging roads. EPA will also hold listening sessions with the public this summer. In the notice, EPA has specifically asked for comments on how to best regulate forest road stormwater discharges. The agency is especially interested in the successes and failures of current best management practice programs across the country. EPA will take public comments on its proposal until June 22, 2012.

Overall, the forest products industry is seeing this as a positive devleopment. Dave Tenny, president and chief executive officer of the National Alliance of Forest Owners, has said "the EPA regulatory announcement is a sign that “we're all in agreement on what the policy outcome ought to be." In the short term, the sticking point seems to be whether getting to that policy outcome is through judicial, executive, or legislative action, or some combination of the three.

This issue is extremely important to forest landowners because of the potential costs involved. The EPA's notice leaves open the possibility of future regulation of these roads. One study I've seen indicates that if the EPA were to require permits in the future, compliance costs in the Southeast would be at least $2.08 per acre per year for larger landowners and at least $3.13 for smaller landowners. Another potential cost to landowners under any regulatory regime will be the threat of citizen lawsuits alleging noncompliance with the Clean Water Act. EPA's regulatory direction will have a huge impact on how high both of these costs go.