Monday, August 19, 2013

Quick Update: Will Congress Act to Fix the Forest Roads Quagmire through the Farm Bill?

I've had some questions lately about the effects of the U.S. Supreme Court's decision in Decker v. NEDC, 568 U.S. _ (2013). As I've discussed, in that case, the Supreme Court held that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act. Because of complications from the new rule EPA issued just before oral argument in the Decker case, however, the NEDC had an opening to continue the litigation out in the Ninth Circuit. So the litigation and uncertainty for forest landowners continued.

These questions are timely. As my readers well know, I've been saying for years on this blog that the only way out of the forest roads quagmire and its resulting litigation is for Congress to act.

This year's Farm Bill process was a mess. While the bill sailed through the Senate, in the House nobody on either side of the aisle could agree on anything. Ultimately, the House was able to split the farm components of the bill from the food stamp provisions that have been a part of it for years. Into this "farm only" bill went the Forest Roads Amendment. This amendment would preserve EPA's 37-year-old interpretation that forest roads should be regulated as nonpoint sources (and therefore no permit is necessary). This amendment was basically the same as the Silvicultural Regulatory Consistency Act, which various legislators have been working to pass for several years.

This paves the way for a true legislative solution when the Senate and the House discuss the differences in the bills that were passed later this year--presumably before September 30, when the current Farm Bill expires. If you're a forest landowners or in the forestry industry, you'd do well to call your senators and representatives and encourage their support for the Forest Roads Amendment.