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.

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

I'm grateful to the editors of the South Carolina Forest Steward, sponsored by Clemson's University's Cooperative Extension Service and the South Carolina Forestry Commission, for asking me to provide their readers with an update on the forest roads litigation following the U.S. Supreme Court's recent decision. This is a great newsletter that forest landowners throughout the Southeast may be interested in.

The article is reproduced below. This article was written as an analysis of the Court's decision, so it is not an up-to-the-minute update. I'll be providing that update in an upcoming post over the next couple of weeks.

The Forest Roads Litigation: A Win for Landowners, but the Long Journey Continues

Imagine if you needed to ask the federal government’s permission to harvest timber. Recently, the U.S. Supreme Court rejected an environmental organization argument to require just that. In March, the Court reversed a Ninth Circuit Court of Appeals decision that required forest and logging roads to be permitted under the Clean Water Act. See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. _ (2013) (consolidated cases 11-338 and 11-347). You may recall that the Ninth Circuit is the court that gave us the highly-publicized decisions protecting the spotted owl in the Pacific Northwest and eliminating timber harvesting in many communities. It is also the court that the Supreme Court overturned last year in an important case that for the first time gave landowners the right to take the U.S. Environmental Protection Agency (“EPA”) to court when it issues fines and penalties against the landowners. See Sackett v. EPA, 132 S. Ct. 1367 (2012).

Forestry professionals and forest landowners were paying attention to this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit? Second, would forest landowners be exposed to the risks of citizen suits by environmental organizations seeking to enforce the Clean Water Act? These questions made the Decker case the most important environmental regulatory decision for forestry professionals and forest landowners in recent memory. For the small landowner in the Southeast, permitting costs alone had been estimated at minimum to be $3.13 per acre per year—and as high as $21.46 per acre per year. See http://nafoalliance.org/wp-content/uploads/Road-Permit-Costs-in-South1.pdf.

Although the Decker decision was a big win for the forestry community, it poses some risks for the future. Ultimately, environmental and regulatory problems are political problems; you should continue paying attention to this issue and discuss it with your elected officials.

The Forest Roads Litigation

The Supreme Court’s decision in Decker is just the latest in a long fight over the murky provisions of the federal Clean Water Act. The parties have already been litigating this issue for about seven years. Some background about the Clean Water Act will help frame this discussion. Under the Clean Water Act, pollutants may not be put into waters of the United States by a “point source” without a National Pollutant Discharge Elimination System (“NPDES”) permit. A point source is more or less any discreet conveyance that could discharge pollutants, such as a pipe, ditch, channel, tunnel, or conduit. Nonpoint sources are not regulated. Congress chose to regulate pollution this way because the technology of the 1970’s could only feasibly regulate point sources. Over the past 40 years, we have become very good at assessing and treating point source pollution. We have not been as successful dealing with pollution from non-point sources, and so environmental organizations have been attempting to cast ever-wider nets using outdated laws.

In a lawsuit attempting to do just that, in 2006, a nonprofit organization based at Lewis & Clark Law School called the Northwest Environmental Defense Center (“NEDC”) sued a group of landowners—the Oregon State Forester, the Oregon Board of Forestry, and various timber companies—in federal court. NEDC argued that the system of ditches, culverts, and channels that collected stormwater on two forest roads that the landowners used in the Tillamook State Forest required were point sources.

The landowners argued that the roads and their associated natural stormwater systems were exempt from NPDES permitting because they fell under EPA’s longstanding Silvicultural Rule. The Silvicultural Rule was developed in 1976. It exempts most silvicultural activities from classification as a “point source”, including “nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.” 40 C.F.R. § 124.85 (1976).

The federal trial court dismissed NEDC’s case. It agreed with the landowners that the timber road runoff collected into a system of ditches, culverts, and conduits and were exempt from permitting requirements under the Silvicultural Rule. Nw. Envt’l Def. Center v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007). On appeal, however, a panel of judges on the Ninth Circuit struck down the Silvicultural Rule in August 2010. The landowners asked the Ninth Circuit to reconsider the issue before a much larger panel of judges. It agreed and issued a new decision in May 2011, but it still held that the Silvicultural Rule was invalid. See Nw. Envtl. Defense Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). It said that when agencies adopt rules, those rules must be consistent with the statutes they are developed under—and the Silvicultural Rule was inconsistent with the Clean Water Act.

The state of Oregon appealed the ruling to the U.S. Supreme Court, with the support of 25 other states, as well as a number of forest landowners and forest industry organizations. As the parties submitted their written arguments, most observers thought that the forestry interests had the stronger case. On the eve of oral arguments, however, EPA surprised everyone by issuing—in record time—a new rule to replace the rule that the Ninth Circuit struck down. EPA said the new rule left the U.S. Supreme Court with no reason to hear the case. Consequently, instead of talking about the substance of the case, the parties spent all their time arguing about what should happen to the case after the new rule. The Supreme Court Justices, as you might imagine, were not happy that they had not been told about this new development, and so they ordered the parties to submit additional written arguments about the new EPA rule.

Meanwhile, out in the Ninth Circuit, NEDC immediately sued EPA seeking to have the new rule declared invalid. Forest industry groups requested to intervene in the case, which the Ninth Circuit allowed. The industry groups were concerned because the new rule only addresses logging roads, which are temporary roads. The new rule specifically stated that EPA was still considering what to do with more permanent forest roads. Don’t expect the Ninth Circuit to determine whether the rule is valid before the end of 2013.

Implications

This brings us to the U.S. Supreme Court’s decision in Decker. After the complications of EPA’s new rule, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues. In a pleasant surprise for the forestry community, the Supreme Court did, saying that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads form the NPDES permitting scheme.” It reasoned that EPA’s interpretation of its own regulations was reasonable, was longstanding, and complied with the intent of the Clean Water Act.

The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as commentators and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to less clean water. In doing so, it recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a control-and-command regulatory environment.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said that it was proper for the NEDC to bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule created by an agency can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was actually to whether the landowners had proper permits under the Clean Water Act, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be open to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the new outstanding lawsuit out in the Ninth Circuit, the Clean Water Act remains an issue that the forestry community must stay abreast of.

What can you do? To keep from being surprised, forest landowners and forestry professionals may want to start thinking through their contracts. It was already a good idea to keep track of who is responsible for getting environmental and land use permits, but with legal uncertainty still looming, it may also be a good idea to include in contracts language that determines who should pay for, draft, and submit permit applications that are developed after a contract is signed.

As for a long-term solution, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. Bills have been filed over the last couple of years that would have solved all of this litigation, but they were not passed. You can help by calling your U.S. senators, congressmen, and congresswomen and asking them to reintroduce or support the Silvicultural Regulatory Consistency Act (last year’s bills were numbers H.R. 2541 and S. 1369). Remember, as I mentioned, that with all environmental law and regulatory problems, the real solution is political.

Jacob T. Cremer practices property rights, environmental, and land use law at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., based in Tampa, Florida. His passion for these areas of the law comes from growing up in a family that has been involved in forestry in Florida for five generations and in South Carolina for thirty years. He assisted counsel of record before the U.S. Supreme Court for the landowners in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592 (2010). He co-authored an amicus brief to the U.S. Supreme Court in support of the landowner in Koontz v. St Johns River Water Management District, No. 11-1447 (argued Jan. 15, 2012). Follow the developments on the cases discussed here and others at his blog, The Florida Land Environment, www.jacobtcremer.com.

What Does the U.S. Supreme Court's Decker Decision Mean in Plain Language?

Once again, thanks to the Southeastern Wood Producers Association for inviting me to give its membership an update on the forest roads litigation in the latest edition of its newsletter, Out of the Woods. See Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). This short, readable article is excerpted below.

U.S. Supreme Court Decides Forest Roads Case 

In good news for the forestry community, federal permits will not be required anytime soon for logging roads. In Decker v. NEDC, the U.S. Supreme Court decided that the U.S. Environmental Protection Agency’s (EPA) rules properly exempt stormwater runoff from logging roads from permitting under the Clean Water Act.

In the last issue of Out of the Woods, you may recall that I mentioned this case because it addressed two important questions. First, would all forest and logging roads require a time-consuming and expensive permit (permitting costs in the Southeast had been estimated as high as $21.46 per acre per year)? Second, would forest landowners be exposed a greater risk of environmental lawsuits? These questions made the Decker case the most important regulatory decision for forestry professionals and forest landowners in recent memory.

In the 1970s, EPA had developed the Silvicultural Rule, excluding logging roads from Clean Water Act permitting. No one had ever challenged that interpretation until an environmental organization, NEDC, sued Oregon and several timber companies. Although the defendants had acted legally under the EPA’s standards, NEDC argued that they should have had a permit because EPA’s rule was invalid. A federal trial court dismissed the case, but the appellate court invalidated the rule.

By the time the case got to the Supreme Court and was ready for oral arguments in December, the forestry community looked poised to win. EPA, though, complicated things by issuing a new rule on the eve of arguments that was supposed to fix the problem. After these complications, most observers thought it was unlikely that the Supreme Court would address the actual Clean Water Act permitting issues.

In a pleasant surprise for the forestry community, however, the Supreme Court did. It ruled that EPA’s rules exempt “discharges of channeled stormwater runoff from logging roads” from Clean Water Act permitting, reasoning that EPA’s interpretation of its own regulation was reasonable, was longstanding, and complied with the intent of the Clean Water Act. The Supreme Court could have stopped there, but it went on to congratulate Oregon on a job well done in implement its forestry best management practices. The Supreme Court seemed to recognize, as foresters and scientists have pointed out, that a nationwide Clean Water Act permitting regime might actually lead to dirtier water. In doing so, the Supreme Court recognized the importance of allowing landowners and the forestry community to work together voluntarily to address environmental problems, rather than requiring a command-and-control regime.

The Decker decision, however, was not all good news for the forestry community. The Supreme Court said the NEDC could bring its challenge to the Silvicultural Rule, which was over 30 years old. Normally, a rule can only be challenged for a short period of time before it becomes law. The Supreme Court ruled that because the challenge was to whether the landowners had proper permits, they were not actually challenging the rule directly. This will, unfortunately, lead to more litigation by environmental organizations that do not like longstanding rules. Landowners may be subject to these lawsuits, even if they follow all of the agencies’ rules and recommendations. With this risk, and the fact that NEDC has already filed a new lawsuit challenging EPA’s new rule, the Clean Water Act remains an issue that the forestry community must be aware of.

With all environmental law and regulatory problems, the real solution is political. Therefore, congressional action permanently exempting silviculture in all its forms from the Clean Water Act would still be the best solution. Recent election-year politics have not yielded results, but now that the Supreme Court has ruled, this issue may not be as contentious as it once was. You can help by calling your elected representatives.

Jacob T. Cremer is an attorney at Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., in Tampa. His practice focuses on property rights, environmental, and land use law. He grew up in a family that has been involved in forestry in Florida for many generations. Follow the developments on these cases and others at his blog, The Florida Land Environment, www.jacobtcremer.com.

U.S. Supreme Court Says No Clean Water Act Permit Needed for Logging Roads, Raises Other Questions for Landowners and Agencies

In a victory for landowners, the U.S. Supreme Court just issued its opinion in the forest roads case, Decker v. NEDC, 568 U.S. _ (2013) (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). The Supreme Court began by breezing past the argument by EPA and the environmental plaintiff that the case was moot because of EPA's newly-revised rule exempting logging roads from permitting under the Clean Water Act. It held that the new rule was irrelevant to the merits of the case before it because the landowners might still be liable for penalties under the old rule for past violations of the Clean Water Act.

On the merits, the Supreme Court held that EPA's rules exempt "discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme." Slip Op. at 15. The Court reasoned that EPA's reading of its regulations was reasonable, was longstanding, and complied with the intent of the Clean Water Act:

It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’” Chase Bank USA, N. A. v. McCoy, 562 U. S. _, _ (2011) (slip op., at 12) (quoting Auer, 519 U. S., at 461). The EPA’s interpretation is  a permissible one. Taken together, the regulation’s references to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities associated sites, as well as other relatively fixed facilities.  

There is another reason to accord Auer deference to the EPA’s interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10). The opposite is the case. The agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.  

The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff  before it enters rivers and streams, Ore. Admin. Rule 629–625–0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629–625–0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629–625–0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6). 

Slip Op. at 14-15. The Court's resolution of this issue seems to still leave the Ninth Circuit litigation on the EPA's new rule in play. I'll continue following that issue.

Beyond the immediate comfort that this opinion should give forest landowners, there are two significant issues that could have broader implications. First, we could see an increase in citizen-suit environmental litigation under the Clean Water Act. The Supreme Court held that "the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation." Slip Op. at 9. It just happens to be that the NEDC's reading of the rule did not match EPA's. Therefore, "[t]he present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule." Slip Op. at 8. Consequently, environmental organizations will most certainly argue in the future that regulations are ambiguous and should be interpreted in a different--and novel--way that implicates liability for landowners. What's a landowner to do if it can be sued for following a regulation in exactly the way that EPA interprets it?

The second broader implication, as the New York Times notes, is Justice Scalia's call for review in his dissent of the longstanding principle of administrative law that executives agencies receive great deference to agency interpretations of their own regulations:

The Court gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough. 

Justice Scalia forcefully argues that, while there may be reasons to defer to an agency's interpretation to a statute where Congress has purposefully delegated authority to the agency, there is no good reason to do the same for an agency when it interprets its own rule. "For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Ultimately, he says, "He who writes a law must not adjudge its violation."

This idea seems quite reasonable to me, just as it did to Chief Justice Roberts and Justice Alito. They, however, recognized the argument goes "to the heart of administrative law." Accordingly, while they expressed some interest in reconsidering this principle, they felt this case was not the proper vehicle for the argument because it had not been argued in any depth. At the very least, Justice Scalia's dissent should give rise to some interesting petitions for certiorari to the Supreme Court in the coming days.

Forest Roads Litigation Update: In Challenge to EPA's New Rule, Industry Intervenes

The forest roads litigation continues to develop, but that unfortunately means little certainty for landowners. In preparing to speak about this litigation with the Alabama Forestry Association at their mid-year meeting on Friday, I have a few updates for my readers.

As I mentioned before, the Northwestern Environmental Defense Center has already attacked EPA's new rule in the Ninth Circuit. This came as a result of EPA releasing a new rule "clarifying" that logging and logging roads are not subject to NPDES permits under the Clean Water Act. Recall, as I've discussed, that this rule really does not seem to solve much, but that it really fouled up oral arguments at the U.S. Supreme Court because it was released just before the arguments.

In any case, it is somewhat helpful to forest landowners, so earlier this month, a large groups representing timber and forestry interests requested intervention in the case to protect their interest. The industry organizations request intervention for a number of reasons, including that while they and "EPA agree that forest road stormwater discharges are not currently subject to NPDES permitting under the CWA, they may disagree as to how and when such discharges should become subject to regulation in the future. Indeed, as part of the Federal Register notice regarding the Final Rule, EPA explicitly acknowledges that it may regulate such discharges in the future." That is, while they agree with EPA that logging roads should not be subject to permitting, they foresee a future fight over the more permanent forest roads.

On February 13, the Ninth Circuit granted the petition to intervene. The amended briefing schedule is as follows: EPA is to file the administrative record by June 13, 2013, the NEDC's brief is due July 23, EPA's answer brief is due August 22, and the industry intervenors' brief is due September 5, with NEDC permitted to file a reply 14 days thereafter. The Court has not yet ruled on the industry's petition to intervene, but it will most likely allow them into the case. NEDC's initial brief is due on March 25 and EPA's brief defending its new rule is due April 24.

Uncertainty remains for landowners. But one thing is for sure: NEDC isn't going to back down. As Greg Jackson wrote on the blog of the Kentucky Journal of Equine, Agriculture, and Natural Resources Law:

As demonstrated above, continuing to pursue the current litigation is NEDC's only avenue to recover its costs. While completely dropping the suit will not promote any of NEDC's goals, solely pursuing the challenge before the Ninth Circuit would. It allows the group to protect the environment and the Pacific West's natural resources, and, through another lawsuit, could result in receiving the requested relief. Furthermore, given the current appeal's interlocutory nature, this bifurcated approach would not produce any greater litigation. In fact, this option may clear up some complex issues, such as jurisdiction, and lead to cleaner litigation. Instead, however, NEDC has chosen to continue the current appeal, notably the only option for recouping its litigation costs. Thus, a substantial factor in NEDC's decision to continue litigating the action currently before the Supreme Court appears to be monetary. Instead of taking the simpler challenge routes, the group has chosen to unnecessarily prolong complex litigation in hopes of forcing its opponent to foot mounting legal bills. This clear evidence of greed is certainly an uncomfortable reality for an environmental group who would likely be quick to condemn the corporate defendants as malicious profiteers, selfishly subjecting the environment for their own personal gain.

I don't necessarily agree with Jackson that this is "greed." Rather, it seems more about a self-interested organization that, like all organizations, is out to keep itself going. So it's about money now for the NEDC. Its incentive now is to win the litigation, no matter the best legal solution. If it were poker, I would say the group is pot-committed.

EDIT 10:30 AM 2/28/13: I've revised the post to reflect new information that readers sent me revising the briefing schedule and indicating that the motion to intervene has been granted.

A Jargon-Free Property Rights Update for Forest Landowners

Thanks to the Southeastern Wood Producers Association for inviting me to give its membership a "Forestry and Property Rights Legal Update" in the latest edition of its newsletter, Out of the Woods. It's excerpted below:

Forestry and Property Rights Legal Update

In recent months, there have been several legal developments that property owners and those involved in forestry should know about. Having some familiarity with these legal issues can be an important service to the landowners that members of this Association work with.

You’ve probably heard about the forest roads lawsuit, Decker v. NEDC, argued before the U.S. Supreme Court in early December. At stake is whether logging roads and ditches need federal stormwater permits. Since the 1970s, EPA has agreed they do not with its “Silvicultural Rule.” When environmentalists sued in Oregon, a federal court ruled that EPA was incorrect. Last year, Congress blocked EPA from developing the new permit while the case was on appeal.

The case before the Supreme Court looked strong. EPA, however, complicated things by issuing a new rule intended to replace the faulty Silvicultural Rule on the eve of the case being heard. While the new rule helps the forestry community by generally not requiring permits for logging roads and ditches, the Supreme Court seemed concerned about this new development. The Supreme Court should rule by July. For now, it has asked the parties for further information about EPA’s new rule. The only real solution here is congressional action, so talk to your U.S. representative and senators about this issue.

Two important property rights cases have not been in the news quite as much. One case, Koontz v. St. Johns River Water Management District, questions bargaining practices that governments use for land-related permits. There, the government agreed to issue a permit to fill wetlands if the landowner paid to improve government culverts miles away. The landowner refused and sued when the government denied the permit. The Florida Supreme Court said the landowner could only challenge the unreasonable permit demand after giving in to it.

The outcome of Koontz will be important to all landowners—even average homeowners and agricultural landowners. The growth in government at all levels means that every landowner in the country is now subject to a complex permitting regime. Imagine a local government that requires you to buy $25,000 in new library books in order to get a permit to build a new deck. Or a state agency that requires a timberlands owner in the Panhandle to build a nature walk in South Florida to get a permit to build a logging road. The Supreme Court is being asked to decide how far these outrageous requests can go. I was fortunate to be involved in this case. I watched the oral arguments in Washington, D.C. in January and am cautiously optimistic that the Justices will support the landowner.

The other recent property rights case before the Supreme Court has already been decided—and it was a big win for landowners and forestry. In Arkansas Game and Fish Commission v. United States, the Supreme Court held that a landowner could be compensated where the federal government’s temporary flooding of the property destroyed millions of dollars of standing timber.

From the beginning of the Republic, governments have tried to get out of paying compensation for property they take by arguing it was for the public good. The Supreme Court once again rejected this argument. The Constitution, it said, requires the government to pay landowners for damages to property, no matter whether the government had a good reason for its actions or not.

We must be our own advocates for property rights and the sound environmental practices used in forestry. As these cases illustrate, we must remain diligent in working to protect our property rights and livelihoods. The next time you talk to a landowner, tell them about these recent developments. Remind them about the legal struggles that our industry faced and is still facing out West because our laws prioritize the Northern Spotted Owl above people. It could happen here if we are not mindful.

Jacob T. Cremer is an attorney at Bricklemyer Smolker, P.A., in Tampa. His practice focuses on property rights, environmental, and land use law. He grew up in a family that has been involved in forestry in Florida for many generations. Follow the developments on these cases and others at his blog, The Florida Land Environment.

In Forest Roads Case, Path for U.S. Supreme Court Still Unclear as Supplemental Briefs Arrive

As the supplemental briefs arrive in the forest roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347), it remains unclear what the U.S. Supreme Court will do with the case. My readers will recall that what was shaping up to be a win for the forestry community (and the environment) was thrown into disarray when EPA surprised everyone by issuing a new rule on the eve of the U.S. Supreme Court's consideration of the old rule.

The Justices were not happy with this last minute change, and so they requested supplemental briefing after oral argument. The Pacific Legal Foundation blog has fair summaries of the supplemental briefs:

The petitioners (timber companies): The petitioners urge the Court to issue a substantive opinion resolving the “point source” and “industrial activity” questions, and reversing the Ninth Circuit. The case is not moot, they argue, because the new rule did not change the law; rather, it confirmed the position they have advanced from the beginning, which is that EPA’s stormwater regulations exempt logging road runoff from NPDES permitting. They contend that EPA’s authority to exempt logging roads is a live issue that should be resolved. They also explain that resolving the question of EPA’s authority to adopt the exemption will cut off new challenges to the revised rule, and therefore spare the courts from having to litigateDecker all over again. At the very least, say the petitioners, the Court should vacate the Ninth Circuit’s judgment and remand for reconsideration in light of EPA’s new rule. 

The respondent (Northwest Environmental Defense Center): NEDC argues that the new rule does not foreclose its claims against the petitioners, and that the Court should allow lower courts to consider those claims in light of EPA’s new rule in the first instance. NEDC thus asks the Court to dismiss the case as improvidently granted, and remand so the group can continue to press its claims below. NEDC also asks the Court to affirm any aspect of the Ninth Circuit’s opinion that the Court chooses to address. 

United States (by invitation of the Court): The federal government argues that the case was rendered moot by EPA’s new rule because the rule confirms that the timber companies will not have to obtain NPDES permits. This would be so even if the Supreme Court were to uphold the Ninth Circuit’s opinion, which was issued while the old regulatory framework was in place. The government believes the Court should vacate the Ninth Circuit’s judgment, and remand with instructions to dismiss NEDC’s complaint. An alternative avenue would be to vacate the Court of Appeals’ judgment and remand to allow that court to address the effect of the revised rule.

Lyle Dennison at SCOTUSblog summarized:

Lawyers on all sides of the dispute over the federal government’s role — or lack of it — in monitoring the drainage of storm water across logging roads have offered the Supreme Court a range of ideas on what to do with the case, now that it has been argued and new government rules are in place. There was agreement on only one thing: the Court might consider, perhaps as a backup choice, sending the case back to the Ninth Circuit Court for a new review. That is the simplest option among an array of choices laid out in a new round of briefs in two consolidated cases argued seven weeks ago.

I agree with Lyle's hint that if there is an easy way out for the Supreme Court to take, it will find it. As the National Alliance of Forest Landowners has mentioned, the real solution here is congressional action.

The Forest Roads Litigation Gets Even More Complicated

As the National Alliance of Forest Landowners put it, "the forest roads legal quagmire is now here." The U.S. Supreme Court heard the forest roads case on December 3, 2012 (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Recall that the main issues in this case are:

• Is the Silvicultural Rule defining forest roads as nonpoint sources of pollution a valid interpretation of the Clean Water Act (CWA)?
• Did the U.S. Environmental Protection Agency (EPA) exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
• Does the CWA allow the environmental organization to file this case in a federal district court 30 years after the Silvicultural Rule became final?

After the oral arguments, I said it was "hard to imagine a scenario that doesn't keep this issue in litigation for years to come." And that is exactly what is happening.

First, the Supreme Court has requested supplemental briefing because EPA issued a new rule aimed at curing some of the issues in the case on the eve of the Supreme Court arguments. The Justices weren't happy about not having been informed earlier about this development, so it was no surprise that they wanted to further consider how EPA's actions would affect the case. The supplemental briefs are due January 22.

Meanwhile, out in the Ninth Circuit, the same environmental organization litigating this forest roads case has filed another. This time, it has requested review of EPA's new rule that was intended to the fix some of the problems. After the past week, one thing is for sure: forest roads litigation is here to stay. Landowners certainly aren't being helped by this morass of litigation and administrative rulemaking.

Changes in Environmental Law to Watch for in President Obama's Second Term

In an interesting series of articles, attorneys on the West Coast have been writing about the changes to watch for in environmental law in the under President Obama's second term administration. The articles include:

• A summary of air, energy, water, natural resources, and waste policy change:

The Obama Administration is expected to advance major changes to energy and environmental laws in the next four years. There is already a backlog of pending legislation and proposed regulation to work through, and both environmental and industry groups will press for major reforms.

• A detailed look at changes in air quality rules:

Now that the election is over, EPA is expected to begin moving forward a crowded air docket, including greenhouse gas standards for utilities and refineries, updates to ambient air quality standards for particulate matter and ozone, and several rules that are being rewritten in response to legal challenges. Utilities, refineries, and operators of industrial boilers will all face new requirements specific to their source categories, as well as potential for further constraints due to more stringent, generally applicable ambient air quality standards. Final action on the first of these rules is expected before the end of 2012.

• A overview of the future of energy policy:

The first Obama administration saw many proposals, but few final actions on new federal regulation of oil and gas production. That pattern appears likely to change in the President’s second administration. The boom in oil and gas production is creating a counter-boom in litigation aimed at stopping or limiting development, and both industry and environmentalists are pressing their case as to the role the federal government should play in an era of greater energy abundance.  

• A discussion considering why waste policy may be a bigger issue than considered at first glance:

Compared with some other items on the Obama Administration’s second term agenda, hazardous waste and chemicals regulation is not as likely to be seen as an area of significant change. That’s a mistake. A number of issues are percolating at or just below the surface of the Administration’s regulatory priorities in this area that may bring significant change over the next four years.

Each issue discussed will not necessarily affect every landowner, but the takeaway here is that we could see some significant changes to our federal environmental laws and regulations over the next four years.

Friday Roundup of Environmental & Property Rights Cases before the U.S. Supreme Court

This was a big week at the U.S. Supreme Court for environmental and property rights cases. What's my soundbite? The environmental cases are extremely unlikely to actually resolve anything, which will certainly lead to more litigation. The property rights case was a big win for landowners.

First, as I discussed earlier in the week, the Court issued its opinion in Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012), holding that where the government causes flooding, even if the flooding is merely temporary and non-recurring, it may be liable for a taking. Commentary and recaps:

• SCOTUSblog analysis of the opinion.
• Collection of commentary at SCOTUSblog.
• Robert Thomas at InverseCondemnation collects commentary and gives his own detailed thoughts.

Second, the Court heard the Forest Roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). As I blogged about previously, EPA issued a new final rule about logging roads on the eve of oral arguments, so the Court spent most of its time discussing what should be done in light of the new development. After this, I question whether this case will actually resolve anything about the Clean Water Act. Commentary and recaps:

• The SCOTUSblog preview and recap.
• Lawrence Hurley reports over at Greenwire.
• From the New York Times.
• The National Alliance of Forest Owner's blog, which as always, boils down the legalese into something that's easy to understand, if unfortunate: "Perhaps the most significant impact of the new rule is that it will perpetuate litigation in the Ninth Circuit with the added twist that, since the rule applies nationwide, whatever the Ninth Circuit ultimately decides will apply nationwide as well. The NEDC attorney told the Court in very clear terms that NEDC intends to continue litigation by whatever means to require permits for forest roads, stating:“…we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself…I think that what we’ll do is proceed whatever way we can.”"

Third, the Court heard the other Clean Water Case, Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012). As with Decker, it appears that this case may not end up resulting in much insight because all parties agreed the Ninth Circuit was wrong; they just disagreed on how to fix the error. It also appears that most of the arguments are permit-specific and an opinion from the Court would likely be confined to the facts. Commentary and recaps:

• SCOTUSblog has a great preview and excellent recap of why this case will probably not end up being all that important.
• The transcript.
• From the L.A. Times.
• One Los Angeles blog thinks this case was all about money behind the scenes.

U.S. Supreme Court Hears Forest Roads Case: Legal Uncertainty Very Likely to Continue

The U.S. Supreme Court heard the forest roads case today (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Boy, how things change in just a few days. What was postured to have been a heavyweight brawl with industry, Oregon, and EPA favored by a wide margin appears likely to become a mere footnote in environmental law.

Right out of the gates, Chief Justice Roberts wanted to talk about how the EPA's new rule would affect the case, congratulating the industry on "getting almost all the relief they're looking for under the new rule issued on Friday." LegalPlanet's analysis of the arguments continues:

The Chief Justice was not nearly as polite when the Deputy Solicitor General began his argument on behalf of USEPA (as amicus supporting the industry and Oregon petitioners). Were you as surprised as we were, asked Roberts, that the rule would be issued on Friday? After the government’s lawyer revealed that he, too, had only learned of the new regulation on Friday, the Chief Justice mused that 375 pages of merits briefing had been rendered largely irrelevant, and that the Court could have postponed the Decker arguments until April if it had known in advance that the new rule was coming–presumably to allow supplemental briefing on the effect on the case of the late-breaking EPA regulation. 

*** 

Following this morning’s arguments, it seems obvious that the Northwest Environmental Defense Center will not preserve its win in the Ninth Circuit. But it’s almost equally unlikely that the timber industry and Oregon will obtain the reversal on the merits that they had been fervently seeking from the Supreme Court. More likely, the Court will wind up disposing of the Decker case on procedural grounds, without issuing a substantive decision. And that, ironically, will vindicate the Solicitor General’s original recommendation to the Court–ignored by the justices–that the Decker case was not cert-worthy in the first place.

All this without Justice Breyer, who had recused himself from the case, and whose expertise in administrative law may have been originally helpful, and which certainly would have been valuable after the case's change in posture. With that, the environmental cases don't seem to be making as big of a splash before the Court as many thought they would. As SCOTUSblog reports, the other Clean Water Act case before the Supreme Court, to be argued tomorrow, also appears to have become irrelevant. See Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012).

The upshot here for forest landowners is, just as NAFO predicted, EPA's new rule has created legal uncertainty that landowners will be forced to deal with, possibly for years into the future. Based on the arguments today, it's hard to imagine a scenario that doesn't keep this issue in litigation for years to come.

Forest Roads Update: EPA Finalizes New Logging Road Rule on the Eve of U.S. Supreme Court Arguments

Tomorrow, the U.S. Supreme Court will hear oral arguments in the forest roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). I've been following this legal battle for quite some time, so my readers know its importance for forest landowners. The statutory and regulatory mechanisms in play are complex, which has made the case tough to follow. The National Alliance of Forest Owners, however, has boiled down the legal arguments in the briefs of the parties and the many amici to three main questions:

• Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)?
• Did the U.S. Environmental Protection Agency (EPA) exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
• Does the CWA allow NEDC to file this case in a federal district court 30 years after the Silvicultural Rule became final?

SCOTUSblog, as usual, has a great preview of the case:

Next week, in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, the Court will review a controversial Ninth Circuit environmental decision that has swept up all three branches of government. A panel of the court that included Justice Breyer’s younger brother Charles, sitting by designation, rejected the Environmental Protection Agency’s view that the federal Clean Water Act does not require permits for stormwater runoff from ditches and culverts on roads used for harvesting lumber (i.e., logging). Congress was sufficiently unhappy with the decision that bipartisan majorities enacted legislation to stay permitting until the beginning of this Term, and members of Congress have introduced legislation seeking to restore EPA’s former approach. To top it all off, EPA recently released proposed regulations for comment that, if finalized, would “clarify” that such stormwater runoff is not subject to permitting. 

The case is of central importance to the logging industry and businesses that rely on it. If the Ninth Circuit’s decision is upheld (and, of course, the regulations exempting logging roads are not finalized soon), in the near term, it would mean a significant additional regulatory burden on logging operations because of the expense in obtaining permits, the ability of environmental groups to delay the permitting process, and the “mind boggling” number of logging roads nationally – there are an estimated 15,000 miles of logging roads in the State of Maine alone and hundreds of thousands more in the Northwestern United States. Depending on the Court’s rationale, a variety of work-arounds (from revised EPA regulations to blanket permits) could render the impact manageable in the longer term, but there is no question that affirmance would be disruptive to the logging industry. 

When the case was first granted, many believed that the case reflected overreaching by the Ninth Circuit and concluded it was headed towards certain and overwhelming reversal. The Northwest Environmental Defense Center (“NEDC”) – the plaintiff below, but the respondent at the Court – must “run the table” and win every issue presented to prevail. Still, the case’s fate is far from clear. 

*** 

On balance, the NEDC has the more difficult challenge: It must win all threearguments to prevail. But while the early consensus appeared to be that the Supreme Court would clearly reverse the Ninth Circuit’s decision, focusing on the Silvicultural Rule, as argument approaches, it appears the case presents some closer questions. The jurisdictional issue is of particularly broad importance, because affirmance could broaden the ability to challenge EPA interpretations of regulations.

Meanwhile, EPA's new logging road rule was signed on Friday. It will go into effect 30 days after it is published, which should be soon. The rule is nearly identical to the proposed rule, which I discussed here. The industry has criticized the rule as poorly timed and creating legal uncertainty, even though it clarifies that logging roads are not be subject to the mandatory NPDES permit requirement under Phase 1 of the stormwater program for discharges associated with industrial activity.

Yes, Silviculture is Agriculture: Forest Roads Case to be Argued Next Week Before U.S. Supreme Court

If it were up to your environmental organizations, your local tree farmer couldn't call himself a farmer. And he doesn't have a tree farm. No, he is an industrial titan - just as much an industrial operation as mining, oil exploration, and heavy equipment manufacturing.

What? Even though silviculture is simply the agriculture of trees? Even though silviculture is always regulated as agriculture? And EPA says forestry is agriculture? Incredibly, that is just the argument being made by NEDC in the forest roads litigation to be heard before the U.S. Supreme Court next week (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Absurd arguments like this show the disconnect these days between environmental advocacy and reality.

The closing reply briefs of the forest and silviculture interests were filed recently, just ahead of the oral arguments. Georgia-Pacific's brief makes some strong technical arguments about the Clean Water Act, but its strength is in explaining the practicalities of forestry. For example, as lampooned above, the NEDC argued that the timber harvesting is industrial activity, twisting those words almost to their breaking point. Georgia-Pacific, however, points out that silviculture is no more industry than agriculture is: "The use of a chain saw, feller buncher, or cable-yarder to harvest trees no more makes logging 'industrial' than using a 20-ton combine to pick and segregate corn makes crop harvesting 'industrial.'" Consequently, "EPA has determined that forestry roads and silvicultural harvesting ... more closely resemble agricultural land uses than industrial uses."

Georgia Pacific's brief makes four main legal arguments:

• Channeled forest road runoff is not a discharge "associated with industrial activity."
• Channeled forest road runoff is not a "point source" discharge.
• The respondent environmental organization's interpretations would undermine the purpose of the CWA.
• The U.S. Supreme Court lacks jurisdiction to invalidate EPA regulations in this kind of enforcement action.

The brief by the State of Oregon  focuses on the Ninth Circuit's refusal to defer to the expertise of the EPA. Normally, courts are supposed to give the opinions and rules of expert agencies great weight, but in the case below, the Ninth Circuit did not do that: 

Here, EPA has consistently interpreted its stormwater discharge rule to exclude stormwater runoff from forest roads from the permitting requirements and its interpretation is consistent with the text of the rule and EPA's expressed intention when it adopted the rule. In light of its unfaltering interpretation of its rule, EPA's interpretation binds this Court. 

But respondent now suggests that this Court should simply pretend as if the very regulation that respondent is seeking to enforce does not exist at all because the relevant statutory language is "plainly dispositive." (Resp. Br. 17). Yet in so arguing, respondent fails to grapple with the two roadblocks in its path: (1) this Court's longstanding recognition that when Congress entrusts an agency with the responsibility to carry out Congress' directives and that agency carries out its responsibility by adopting a rule, the agency's regulations executing those directions cannot simply be ignored; and (2) the limitations on the scope of review in a citizen suit, which preclude a reviewing court from rejecting an agency's regulations because, in the court's view, the agency's interpretation is inconsistent with the relevant statute.

Stay tuned. The Supreme Court will hear this case next week. I'll post commentary once the transcripts are released. In the meantime, catch up on the history of this dispute in my archives.

Environmental Organization Files Brief in Forest Roads Litigation before U.S. Supreme Court

The Northwest Environmental Defense Center (NEDC), a non-profit environmental organization, has filed its brief in the forest roads case before the U.S. Supreme Court (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). Before I jump into the summary, here's a quick reminder of where we're at. It all started when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule under the Clean Water Act, which meant that many forest landowners would need federal stormwater permits for their forest and logging roads. In response, last December, Congress stayed NPDES permitting through October 1, 2012. EPA worked much of this year to develop revisions to its Clean Water Act rules for logging roads (but it is still working on what to do with the broader category of forest roads).

Meanwhile, courts and legal commentators urged the U.S. Supreme Court to grant certiorari and hear the case, although the U.S. Solicitor General recommended against it. Ultimately, the U.S. Supreme Court agreed to hear the case. Now, the case is being briefed, and the U.S. Solicitor General decided to support petitioners (the landowners). You can read all of my blog posts on this issue here.

NEDC argues that the Ninth Circuit's opinion was correct because:

1. The Court has subject matter jurisdiction because the NEDC's citizen suit seeks to enforce EPA's regulations, rather than challenge them. 
2. This case only involves the active channelization of water into ditches and conveyances that go along with logging roads and are discharges that must be permitted. It doesn't involve non-point sources or natural runoff.
3. The accumulation of sediment into the water is an "acute environmental problem" that the EPA must address.

We'll see the landowners' responses to these points soon enough, but here is some food for thought. NEDC's first point seems to be one of those games we lawyers play with words and semantics. Even though NEDC was seeking to enforce EPA's regulations, it still challenged EPA's interpretation of them. The second point is well taken. But it does not squarely address the landowners' argument, which is not whether there is a discharge, but rather whether that discharge is associated with industrial activity, as required by law.. The third point is not especially compelling, since it basically argues that the Court should ignore out the landowners' policy reasoning but accept its own.

EDIT: 10/31/12 - Originally, I mistakenly used the acronym "NRDC," rather than NEDC. This may have called to mind for my readers familiar with environmental organizations the Natural Resource Defense Counsel. That organization is not a party to the case. Thanks to my readers for pointing out the mistake, which has now been corrected.

United States Files Brief Supporting Forest Landowners in Forest Roads Litigation

Along with the petitioners' briefs filed earlier this month in the forest roads case before the U.S. Supreme Court were numerous amici briefs. Groups as diverse as agriculture interests, home builders, environmental organizations, and law professors filed briefs as friends of the Court in Decker v. NEDC and Georgia-Pacific West, Inc. v. NEDC. The one to watch is the well-researched brief by the United States.

Recall that the U.S. Solicitor General previously recommended that the U.S. Supreme Court not hear the case, mostly arguing that there was no reason for the Court to act because both EPA and Congress were moving expeditiously toward a solution. Now the Court has accepted the case, however, the United States is arguing in support of forest landowners. 

Here's the U.S. Solicitor General's summary of its brief:

I. The courts below properly exercised jurisdiction over this action pursuant to the CWA’s citizen-suit provision. Because the EPA regulations relevant to this case (the Silvicultural Rule and the Phase I industrial stormwater regulation) could have been challenged in a court of appeals under 33 U.S.C. 1369(b) at the time they were promulgated, they are not subject to judicial review in this citizen suit brought under 33 U.S.C. 1365(a). The court of appeals did not declare either of those rules invalid, however, but rather rejected the interpretations of those rules set forth in the overnment’s amicus brief. Although the court should have deferred to EPA’s reasonable construction of its own rules, it did not err in entertaining this citizen enforcement suit.

II. The court of appeals misinterpreted both of the EPA regulations at issue in this case. Properly construed, each of those rules independently dictates the conclusion that NPDES permits are not required for the discharges at issue.

A. EPA’s construction of its own rule is “controlling” unless that construction is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). That principle applies even where, as here, the court is precluded from determining whether the regulation so construed is consistent with the governing statute. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 418-419 (1945).

B. The CWA requires NPDES permits for stormwater discharges “associated with industrial activity,” 33 U.S.C. 1342(p)(2)(B), but the Act does not define that term. EPA has construed its Phase I industrial stormwater regulation not to require such permits for stormwater discharges from logging roads. That position reflects a reasonable construction of the regulation’s text. The Phase I regulation refers to discharges from “[f]acilities classified as Standard Industrial Classification[] 24,” which include logging establishments. 40 C.F.R. 122.26(b)(14)(ii). EPA has construed that reference, however, as encompassing only discharges from the four subcategories of silvicultural facilities it had already identified as point sources in the Silvicultural Rule, which do not include runoff from logging roads. Because the stormwater discharges at issue in this case are not covered by EPA’s Phase I regulations, the judgment of the court of appeals should be reversed, without regard to whether those discharges are “point source” discharges under the Act and the Silvicultural Rule.

C. Because the Phase I regulation (properly construed) provides a sound basis for concluding that petitioners were not required to obtain NPDES permits, the Court need not determine whether the Silvicultural Rule also compels the same result. If the Court reaches the issue, however, it should sustain EPA’s interpretation of the Silvicultural Rule, under which no permit is required for “natural runoff ” from logging roads. The stormwater discharges at issue here do not implicate any of the four types of silvicultural facilities (“rock crushing, gravel washing, log sorting, [and] log storage facilities”) that the rule specifically identifies as “[s]ilvicultural point source[s].” 40 C.F.R. 122.27(b)(1). And while the Silvicultural Rule does not state explicitly whether its reference to “natural runoff ” includes systematically channeled runoff, EPA’s resolution of that ambiguity is entitled to judicial deference under Auer.

The court of appeals rejected EPA’s reading on the ground that it would render the Silvicultural Rule inconsistent with the CWA’s definition of “point source.” Seminole Rock, however, precludes that sort of inquiry under the circumstances presented here because EPA’s interpretation of its Rule is controlling. In any event, the CWA’s definition of “point source,” 33 U.S.C. 1362(14), affords EPA “room here for some exclusion by interpretation,” particularly with respect to silvicultural sources. NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977).

Forest Roads Update: Opening Briefs Filed in U.S. Supreme Court, EPA Publishes Proposed Rule

One Step Closer to Review of Forest Roads Decision

The State of Oregon and the industry group of petitioners have filed their merits briefs in the forest roads case that the U.S. Supreme Court will hear this term. As readers of this blog will know, the U.S. Supreme Court consolidated two petitions for certiorari into one case because they were based on the same Ninth Circuit ruling. Since then, it's clear the petitioners have been hard at work, since both present much clearer questions to the Court. The briefs are posted below.

The industry group of petitioners states the question it presents:

Whether the Ninth Circuit should have deferred to EPA’s long-standing position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES.

The State of Oregon states the questions it presents:

(1) Congress authorized citizens dissatisfied with the Environmental Protection Agency’s rules implementing the Clean Water Act’s permitting program to seek judicial review of those rules in the courts of appeal. Congress further specified that those rules could not be challenged in any civil or criminal enforcement proceeding. Did the Ninth Circuit err when it held that a citizen may bypass the exclusive method of seeking judicial review of a permitting rule, and challenge the validity of the rule in a citizen suit to enforce the Clean Water Act against regulated parties?

(2) In the Clean Water Act, Congress required permits for stormwater discharges “associated with industrial activity,” and delegated to EPA the responsibility to determine what activities qualified as “industrial” for purposes of requiring permits for those activities. EPA determined, after public comment and rulemaking, that stormwater from forest roads and other specified forestry activities is non-industrial stormwater that does not require a permit. Did the Ninth Circuit err when it held that stormwater from forest roads is industrial stormwater under the Clean Water Act and EPA’s rules, contrary to EPA’s consistent interpretation of its own rules?

The theme behind both opening merits briefs is clear: the Ninth Circuit allowed an environmental organization to make an end run around around the Clean Water Act's when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule. The Clean Water Act separates the rule development process from the citizen lawsuit enforcement process, and the Ninth Circuit conflated the two processes. Consequently, the petitioners argue that the Ninth Circuit should have barred the belated challenge, or at the least have deferred to EPA's consistent interpretation of the Act and its rules.

EPA's Rulemaking Remains Related But Distinct Avenue for Relief

These briefs come just after EPA proposed revisions to its Clean Water Act rules for logging roads. The National Alliance of Forest Owners has posted an excellent summary of how these issues are related but will likely remain separate until we get a ruling from the U.S. Supreme Court.:

Will the U.S. Environmental Protection Agency’s (EPA) recently announced proposed rule regarding forest roads impact the Supreme Court’s review of the decision by the U.S. Court of Appeals for the Ninth Circuit? The simple answer is no. 

EPA has proposed to clarify its regulations defining “stormwater discharges associated with industrial activity” by revising its reference to Standard Industrial Classification (SIC) 24 to exclude logging. SIC codes were developed in the 1930’s as a uniform way to collect statistics. For reasons never explained, the Department of Labor many years ago included logging in SIC 24 with various solid wood manufacturing classifications, rather than in SIC 08 with the forestry classifications. The proposed rule does not remove the language excluding logging from the industrial activity definition which EPA put in its original 1990 stormwater regulations but which the Ninth Circuit ignored when it ruled that logging is an industrial activity. 

If this rule were to become final, logging, and “immediate access roads” referred to as logging roads, would not be subject to the mandatory NPDES permit requirement under Phase 1 of the stormwater program for discharges associated with industrial activity. However, this would not change two facts. First, under the Ninth Circuit’s ruling, logging roads would have been classified as part of an industrial activity for the past 22 years and would have required NPDES permits during this period. Second, these logging roads, as well as all other forest roads formerly defined as nonpoint sources by the Silvicultural Rule, remain point sources under the Ninth Circuit’s ruling. Finally, the Supreme Court must decide whether the plaintiffs in the case filed the lawsuit at a time and in a court authorized by the Clean Water Act. Thus, the essential issues to the case would remain active before the Supreme Court.

In the short therm, uncertainty remains for forest landowners. These developments indicate, however, that clarity lies ahead.

EPA Proposes Revisions to Clean Water Act Rule Reinforcing Logging Permitting Exemption

EPA has posted its proposed revisions to Clean Water Act rules for logging roads. If you are a forest landowner, I recommend that you provide feedback to EPA in support of the rule. You have about 30 days to send your comment to EPA at Docket EPA-HQ-OW-2012-0195 at www.regulations.gov.

I've been following developments on this forest roads issue for some time now. Forest landowners are facing a great deal of regulatory uncertainty right now because of EPA's rule developments, as well as the U.S. Supreme Court's review of the issue coming this fall.

EPA is hoping that this rule will provide some clarity. Basically, EPA is reinforcing its longstanding exemption of logging roads from permitting requirements:

[EPA] is proposing to revise its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. In Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011) (NEDC), a citizen suit was filed alleging violations of the Clean Water Act for discharging stormwater from ditches alongside two logging roads in state forests without a permit. The court held that because the stormwater runoff from the two roads in question is collected by and then discharged from a system of ditches culverts and channels, there was a point source discharge of industrial stormwater for which an NPDES permit is required. The EPA did not intend for logging roads to be regulated as industrial facilities. However, in light of NEDC, the EPA proposes the addition of language to 40 CFR 122.26(b)(14) to clarify the Agency’s intent.

Footnote 1 of the proposed rule further states that EPA still hopes that the U.S. Supreme Court will determine that forest and logging roads are not point sources (which would make its proposed exemption above unnecessary):

This rulemaking responds to the uncertainty created by the Ninth Circuit's holding in NEDC that certain channeled discharges of stormwater from logging roads constitute point source discharges, bringing them within the Section 402 NPDES permitting framework. This proposed rule, by clarifying what counts as a discharge "associated with industrial activity," makes clear that such discharges do not require NPDES permits even if they are point source discharges. Nothing in this proposed rule should be construed as conceding that discharges of stormwater from logging roads constitute point source discharges, a question on which the Supreme Court has granted review for the October 2012 term.

More information is available on EPA's website for Stormwater Discharges from Forest Roads. EPA has posted the proposed rule, a fact sheet, and a frequently asked questions sheet.

U.S. Supreme Court Grants Review of Forest Roads Case

This morning, the U.S. Supreme Court granted consolidated review of two petitions from a Ninth Circuit decision that concluded a Clean Water Act permit is necessary for forest roads runoff. See 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 owners of forest lands across the country are watching this case closely because the permitting requirement would significantly impact their costs of doing business. The case will be argued this fall, and a decision should be issued by June 2013.

I've written a number of articles about this important issue: focusing on the case background before the Ninth Circuit, commentary on why this would be a good case for the U.S. Supreme Court to accept, Congress's temporary stay on permitting, and EPA's proposed short-term regulatory fix. I'm working on a detailed article suggesting a course of action for the Supreme Court.

The question presented by the Georgia-Pacific petition for certiorari focused on EPA's longstanding Silvicultural Rule:

Since passage of the Clean Water Act, the Environmental Protection Agency has considered runoff of rain from forest roads—whether channeled or not —to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, EPA consistently has defined as nonpoint source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here. EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications. 

The Ninth Circuit—in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to EPA—rejected EPA’s longstanding interpretation. Instead, it directed EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is: 

Whether the Ninth Circuit should have deferred to EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES.

The Decker petition for certiorari focused on slightly different legal issues:

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s (EPA’s) rules implementing the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination System (NPDES) permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding.  

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA? 

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14). 

Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPA’s rules, even though EPA has determined that it is not industrial stormwater? 

I will update this post periodically with commentary on the case as it comes in today.

As U.S. Supreme Court Considers Forest Roads Case, Judge & Commentators Urge Review

The U.S. Supreme Court's docket shows that it is in conference today to decide whether to hear two cases reviewing a Ninth Circuit decision holding that forest and logging roads are subject to Clean Water Act permits because the Silvicultural Exemption was invalid. The Supreme Court will probably issue its decision next Monday in its order list.

Meanwhile, the blog chatter is increasing. The discussions point to the large number of environmental cases that the Supreme Court is considering reviewing right now, of which the forest roads case is one. Although the Solicitor General recommended against review, the past indications are that the Supreme Court still takes up the review of many of these cases when they are related to the environment or coming from the Ninth Circuit. In a recent Ninth Circuit dissent, one judge did everything but call for the Supreme Court to take up the case:

this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Id. at 1073. Yet our court decided to disregard the regulation and require the permits.

One commentator indicated that this could be an excellent case for the Supreme Court to review:

In my view, the Court should grant the petition. First, the Court should determine whether or not the Clean Water Act itself can even plausibly be read to give EPA power over rainwater runoff from logging roads. This a very important issue for which the nation needs a definite answer. 

Second, in order to give the Court time to act, Congress enacted an appropriations rider forbidding enforcement of the new permitting requirement under the Georgia-Pacific theory. (And since EPA can’t issue permits, private plaintiffs cannot sue to compel road owners to either obtain permits or shut down the road.) But the ban expires on September 30. (That the Solicitor General took have a year to file a cert. amicus brief prevented the case from possibly being heard on the merits this spring.) Because of the time necessary for Notice and Comment for EPA rulemaking, the new EPA regulation cannot possibly be operative before the litigation freeze expires. 

Besides that, if the 9th Circuit is correct, then EPA “cannot” make the regulatory choice not to require discharge permits for logging roads. Thus, EPA’s new rule will itself the subject of further litigation. As long as the 9th Circuit’s panel decision in Georgia-Pacificremains valid, EPA will have to write a regulation complying with it, and so it seems inevitable that a huge number of logging roads will be requires to get point source discharge permits.

Will the Silvicultural Exemption to Clean Water Act Permitting Survive?

Recently I posted about EPA's move toward regulation of forest and silviculture runoff. I also spoke recently on the issue. The U.S. Supreme Court is considering whether to hear two cases reviewing a Ninth Circuit decision affecting the former Silviculture Rule. See 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.

This week, I focus on the background of the issue. The American Bar Association's Forest Resources Committee is publishing the article below, which I coauthored with Jessie Marlowe, who just graduated from Florida State University's College of Law. The article summarizes the background of Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). The article is reposted in this link and below.

WILL THE SILVICULTURAL EXEMPTION SURVIVE? AN UPDATE ON NORTHWEST ENVIRONMENTAL DEFENSE CENTER V. BROWN

Jessica Marlowe and Jacob T. Cremer

The U.S. Supreme Court is mulling whether to review Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). It may be “the most significant judicial holding to directly (and negatively) impact private and public forest landowners, operators, managers and their collective economic activities.” Thomas Gould, Judicial Regulation and Killing Jobs: The Ninth Circuit’s Forest Roads’ Decision—Waving Goodbye to Science-Based BMPs and More than 35 Years of Regulatory Precedent, Evergreen Mag. (Feb. 2, 2012), available at http://ow.ly/9nmbz.

Although review by the Supreme Court is usually a long shot, the chances it would review Brown were much improved when the U.S. Solicitor General agreed to the Court’s request to weigh in. If the U.S. Supreme Court decides to grant certiorari, it will be determining, first, whether the Ninth Circuit had proper subject matter jurisdiction to hear the case and, second, whether a Clean Water Act (CWA) permit is required for ditches that collect natural runoff from forest roads.

Background

The Northwest Environmental Defense Center (NEDC) brought suit against the Oregon State Forester, members of the Oregon Board of Forestry in their official capacities, and various timber companies (defendants). The NEDC argued that the system of ditches, culverts, and channels that collected stormwater on two forest roads—owned by the Oregon Department of Forestry and the Oregon Board of Forestry—required National Pollutant Discharge Elimination System (NPDES) permits. The defendants contended that the timber roads and their associated natural stormwater systems fell under the Environmental Protection Agency’s (EPA) silvicultural rule categorical exemption and were therefore exempt from the NPDES permitting process. In the alternative, the defendants argued that the 1987 amendments to the CWA allowed such an exemption.

The CWA requires a NPDES permit for the discharge of any pollutant into the waters of the United States from a “point source.” 33 U.S.C. §§ 1311(a), 1342. The CWA defines a “point source” to be “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel [or] conduit . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). While the CWA does not define what a “nonpoint source” is, the CWA does exempt “agricultural stormwater discharges and return flows from irrigated agriculture” from the definition of “point source.” Id. EPA promulgated a rule in 1976 that categorically exempted certain silvicultural activities from the definition of “point source,” commonly known as the “silvicultural rule.” The silvicultural rule limits silvicultural point source activities to “rock crushing, gravel washing, log sorting, or log storage facilities which are in connection with silviculture activities and from which pollutants are discharged. . . .” 40 C.F.R. § 124.85 (1976). Specifically enumerated in the silvicultural rule as nonpoint sources are “silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.” Id.

Procedural Posture

The district court sided with the defendants, concluding that the timber road runoff collected into a system of ditches, culverts, and conduits and discharged into waters of the United States were exempt from NPDES permit requirements under the silvicultural rule. Nw. Envt’l Def. Center v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007). The district court did not address whether the 1987 amendments to the CWA allowed such an exemption. The district court ultimately dismissed the NEDC’s complaint for failure to state a claim. The NEDC appealed to the Ninth Circuit. The Ninth Circuit reversed, issuing two opinions on this case. The first opinion, issued in August 2010, addressed the validity of the silvicultural rule. In May 2011, the court denied the petitions for rehearing and rehearing en banc but issued a revised opinion. This second opinion was substantially the same as the August 2010 opinion, but it sua sponte addressed subject matter jurisdiction. Although the parties did not dispute jurisdiction, the court addressed the issue. The case was appealed to the U.S. Supreme Court. The Court has not granted or denied certiorari. It has, however, asked the U.S. Solicitor General to weigh in on the issue. In late May, the solicitor general recommended against review. According to the Solicitor General, the Ninth Circuit should have deferred to EPA’s longstanding interpretations of the Clean Water Act and the Silvicultural Rule. Even so, the Solicitor General recommended against review because of efforts by Congress and EPA to address the practical effects of the Ninth Circuit’s decision.

Subject Matter Jurisdiction

The Ninth Circuit’s revised opinion specifically addressed subject matter jurisdiction, unlike the original opinion. The court was concerned because it held on the merits that the silvicultural rule was ambiguous, with no discussion of jurisdiction. 640 F.3d at 1068.

Under § 1365(a) of the CWA, a citizen can bring suit against any person alleged to be in violation of “an effluent standard or limitation” under the CWA. This includes persons illegally discharging pollutants into jurisdictional waters without a NPDES permit. However, § 1369(b) places limitations on suits that challenge the validity of an action taken by the EPA administrator, including the promulgation of effluent standards, prohibitions, or limitations, determinations, approvals, issuance, or denial. Such suits must be brought within 120 days from the date of the administrator’s action unless the basis for the suit arose more than 120 days after the agency action. 33 U.S.C. § 1369(b)(1). Despite the silvicultural rule being on the books since 1976, the court determined that this case came within the § 1369(b)(1) exception. The court reasoned that since the silvicultural rule was susceptible to two different readings, there was no way for the public to know which reading EPA would adopt. According to the court, EPA’s filing of its initial amicus brief first put the public on notice for which reading it would adopt. The court was silent on the 30-plus years of EPA’s interpretation of the silvicultural rule.

Silvicultural Rule Validity

The Ninth Circuit agreed with NEDC, holding that any runoff collected in a ditch, culvert, or the like, regardless of its origin, is a point source. After a thorough review of the statutory definition of “point source” under the CWA, the court looked to case law to determine the distinction between nonpoint and point source runoff. In one case cited, the Ninth Circuit had adopted the Tenth Circuit’s view that “point and nonpoint sources are not distinguished by the kind of pollution they create or by the activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance.” 640 F.3d at 1071. Relying on another Ninth Circuit case, the court wrote: “Storm sewers are established point sources subject to NPDES permitting requirements. . . . Diffuse runoff, such as rainwater that is not channeled through a point source, is considered nonpoint source pollution and is not subject to federal regulation.” Id.

The Ninth Circuit also reviewed the legislative histories of the CWA and the silvicultural rule. It found that the term “point source” was not to be interpreted narrowly and that Congress did not provide EPA with discretion to define any statutory terms. The court mentioned that Congress added a statutory exemption to the NPDES permitting system for agricultural irrigation in 1977 and that no similar exemption has been created for silviculture. In reviewing the history of the silvicultural rule, the court noted that the original version of the rule was found invalid by the D.C. Circuit Court. The D.C. Circuit Court held that “the EPA Administrator does not have the authority to exempt categories of point sources from the [NPDES] permit requirements. . . .” 640 F.3d at 1077, citing Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977).

While the D.C. Circuit Court was reviewing the silvicultural rule, EPA amended it. In 1976, EPA justified its final version of the silvicultural rule—only slightly different from today’s rule—by stating that a proper interpretation of the CWA’s legislative history and supporting case law showed that not every ditch or the like was meant to be a point source under the CWA. According to EPA, ditches that served only to convey nonpoint runoff from precipitation were not intended to be subject to the NPDES permitting program. The Ninth Circuit flatly rejected EPA’s justification, stating that “even though not every ‘ditch, water bar, or culvert’ is a point source within the meaning of the statute, it hardly follows that a system of ditches, pipes and channels that collects ‘controlled water used by a person’ and discharges it into a river is a point source, while an identical system that collects and discharges natural precipitation is not.” The court also applied the D.C. Circuit Court’s reasoning used in striking down the initial version of the rule, concluding that EPA did not have the authority to “exempt categories of point sources from the [NPDES] permit requirements. . . .” 640 F.3d at 1077.

The Ninth Circuit found the silvicultural rule subject to two possible readings: one valid and one invalid. The first reading is a reflection of EPA’s intent in adopting the rule. Under this reading, it exempts all natural runoff from silvicultural activities “irrespective of whether, and the manner in which, the runoff is collected, channeled, and discharged into protected water.” 604 F.3d 1080. The court held that this reading is inconsistent with the CWA. The CWA distinguishes between point and nonpoint sources depending on whether the pollutant is channeled and controlled through a “discernible, confined and discrete conveyance.” In contrast, the silvicultural rule categorically distinguishes between discharges depending on the source of the pollutant. The court held that the definition of “point source” in “no way depends on the manner in which the pollutant arrives at the ‘discernible, confined and discrete conveyance.’ That is, it makes no difference whether the pollutant arrives as the result of ‘controlled water used by a person’ or through natural runoff.” 640 F.3d at 1079. The court concluded that the silvicultural rule, as EPA interpreted it, was not a permissible interpretation of the CWA.

The second reading “does not reflect the intent of EPA, but would allow [the court] to construe the Rule to be consistent with the statute.” Id. Under this reading, natural runoff remains exempt from the NPDES permitting process so long as it remains natural. According to the court, “the exemption ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.” Id. Under either reading, the court held, the rule does not exempt the timber road stormwater runoff that is collected into a system of ditches, culverts, and conduits from the NPDES permitting system.

1987 Amendments to the CWA

Even if the discharges were point sources, the defendants argue that the 1987 amendments to the CWA approved of the silvicultural rule by failing to revise or repeal it. Because Congress never mentioned or alluded to the rule in the legislative history, the court held that Congress was not aware of the rule during the amendment process. Thus, the court reasoned, Congress could not have assented to the rule. 640 F.3d at 1081.

The Ninth Circuit also held that the 1987 amendments fundamentally changed statutory treatment of stormwater discharges and that the relevant statutory language was “flatly inconsistent with the Silvicultural Rule.” Id. The court determined that the 1987 amendments were added to help EPA eventually address all stormwater point sources. They recognized, however, that the major contributors should be regulated first and minor sources should be studied first. It is within EPA’s discretion to regulate de minimis sources like rain gutters of churches, schools, and residential properties.

The 1987 amendments added § 402(p), which established a tiered approach to permit stormwater discharges. Phase I required the major contributors to obtain their NPDES permits first. Among the major contributors are those “associated with industrial activity.” 33 U.S.C. § 1342(p)(2)(B). EPA regulations defined which industrial activities required NPDES permits, stating, “Storm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 C.F.R. § 122.26(b)(14). The court noted that while this regulation states “directly related to manufacturing, processing or raw materials storage areas at an industrial plant,” EPA has stated that it would not limit the definition to just those practices.

Accordingly, EPA expanded the definition to “various types of areas that are directly related to an industrial process (e.g., industrial plant yards, immediate access roads and rail lines, drainage ponds . . .).” 55 Fed. Reg. 47,990, 48,007 (Nov. 16, 1990). The EPA regulation defining which industrial activities require NPDES permits goes on to provide: “The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122.” 40 C.F.R. § 122.26(b)(14). This exclusion refers to the silvicultural rule. Again, the court points to congressional intent, stating that “Congress made clear in § 402(p) that it did not exempt ‘discharges associated with industrial activity.’ 33 U.S.C. § 1342(p)(2)(B). Indeed, Congress specifically mandated that EPA establish a permitting process for such discharges.” 640 F.3d at 1083.

The Standard Industrial Classification (SIC) defines the industries covered by the Phase I “associated with industrial activity” regulation. It was undisputed that logging was considered an industrial activity. The court rejected the argument that logging sites are not “industrial facilities” because they are not typical industrial plants. The court held that the definition of “facility” is very broad and includes timber roads. Therefore, the court held that the reference to the silvicultural rule in the EPA regulations defining which industrial activities require NPDES permits cannot exempt such discharges from the Phase I regulations requiring permits for discharges “associated with industrial activity.”

Review Before the U.S. Supreme Court

Forest owners and managers should be concerned about whether the Brown decision stands. If it does, then EPA will be forced to develop a NPDES permit program. This program will probably not be able to appreciate local conditions as well as the science-based Best Management Practices that states and the forestry industry have developed at great cost over time. See Gould, supra. Ironically, the Ninth Circuit’s opinion may lead to less clean water. Id.

EPA seems to have recognized this in its recent regulatory proposal. EPA recently responded to the Ninth Circuit decision with a notice of intent to exempt logging roads from permits under the Clean Water Act. 77 Fed. Reg. 30473. This exemption will relieve owners and operators of  logging roads from having to comply with NPDES permit requirements. EPA plans to address the broader category of forest roads  by studying their water quality impacts further and holding public meetings this summer. EPA is requesting comments by June 22, 2012 on approaches for regulating forest road stormwater discharges; EPA is especially interested in learning about the current best management practice programs across the country. These comments will help EPA determine its regulatory approach to forest roads.

The U.S. Supreme Court appears likely  to review Brown, the solicitor general’s recommendation notwithstanding. The Court may wish to rule on the substance of Brown, since the opinion seems to be in conflict with the decisions of courts in other jurisdictions. Other courts have affirmed EPA’s regulation that forest roads are nonpoint sources that do not require NPDES permits. See Sierra Club v. Martin, 141 F.3d 803 (8th Cir. 1998); Newton Cnty. Wildlife Assoc. v. Rogers, 71 F. Supp. 2d 1268, 1303 (N.D. Ga.1999). If it takes up the case, the Court will be leery of allowing a challenge to an agency’s long-standing statutory interpretation (of over 30 years).

Even if the Court strikes down the Brown opinion, it might not go so far as to explicitly affirm the validity of the silvicultural rule. It may not be willing to overlook the procedural issues in Brown to get to the merits of the case. The Roberts Court has emphasized restraint in its holdings, adhering to a philosophy of judicial minimalism. See, e.g., William J. Rinner, Roberts Court Jurisprudence and Legislative Enactment Costs, 118 Yale L.J. (Pocket Part 177) (2009), http://thepocketpart.org/2009/03/31/rinner.html. This suggests that, if it takes up the case, the Court may dispense with it on subject matter jurisdiction. This would still be helpful to the forest industry, but it may make for uncertainty because EPA might feel the need to develop a rule that is on stronger footing. EPA’s recent regulatory proposal appears to have been developed with this in mind.

If the Court decides not to review Brown, or if it affirms the Ninth Circuit’s opinion, Congress may be willing to take up the issue. Bills have been introduced that could solve the issue. See Gould, supra. For now, Congress has stayed the effect of this controversial decision through its Omnibus Appropriations Bill until October 1, 2012. Id.

Jessica Marlowe is a third-year law student at Florida State University, pursuing a Certificate in Environmental and Land Use. She has clerked in local government, environmental, and land use law. She holds a B.A. in environmental science from the University of Florida.

Jacob T. Cremer practices environmental and land use law at Hopping Green & Sams, P.A., in Tallahassee, Florida. He assists clients with property development, environmental permitting, and natural resource management. He is a fifth-generation owner of timberlands in Florida.