The Environmental Protection Agency has released a proposed rule designed to get around a federal court decision that required a new layer of permitting for forest roads.
EPA's proposal specifies that logging roads do not need Clean Water Act pollution discharge permits for stormwater runoff, a policy that existed for decades until upended by the U.S. Court of Appeals for the Ninth Circuit.
The court ruled in 2010 that logging roads require the permits if water runoff is channeled in any way, making the water a “point source” discharge requiring a National Pollutant Discharge Elimination System (NPDES) permit. An appeal is pending before the U.S. Supreme Court (Decker v. Northwest Environmental Defense Center, U.S., No. 11-338, cert. granted 6/25/12; 122 DEN A-8, 6/26/12).
EPA is trying to nullify the ruling through a different approach in the exercise of its regulatory authority over forest roads. The agency is proposing to specify, under authority of Clean Water Act Section 402(p), that stormwater runoff from logging roads is not a discharge “associated with industrial activity” and does not need a discharge permit.
EPA Administrator Lisa Jackson signed the proposed rule Aug. 24. It has not yet been published in the Federal Register but has been posted on the EPA website. The public will have 30 days to submit comments after formal publication.
The National Alliance of Forest Owners released a statement Aug. 28 asking EPA to withhold a final version of the rule until the Supreme Court rules on the matter.
“A final rule prior to a Supreme Court decision will cause legal confusion when we are seeking clarity and certainty,” NAFO President Dave Tenny said. “Rather than completing a rule that may not be necessary, we prefer to keep the focus on encouraging the Supreme Court to overturn the Ninth Circuit decision.”
The forest owners, timber companies, farming and ranching interests, and many state and local governments want the Ninth Circuit decision overturned. They have defended in court the practice of allowing state regulators to oversee forest roads while requiring use of best practices in the management of water runoff.
The commercial groups and government officials have warned that if NPDES permits are required, they will open the way to much litigation, not only over the permitting system that EPA promulgates but also over individual permits. Millions of miles of forest roads could require many thousands of permits.
Congress used an omnibus spending bill in December to bar enforcement of the Ninth Circuit decision on logging roads during fiscal year 2012, which ends Sept. 30. The House Transportation and Infrastructure Committee, in an Aug. 1 vote, approved the Silviculture Regulatory Consistency Act (H.R. 2541) to exempt logging roads from NPDES permitting (148 DEN A-1, 8/2/12).
Petitioners' briefs in the Supreme Court case were due Aug. 28. The deadline for Northwest Environmental Defense Center to file its respondent brief is Oct. 16.
By Alan Kovski
The EPA proposed rule on logging roads to avert the need for NPDES permits is available at http://op.bna.com/env.nsf/r?Open=fwhe-8xmq6k.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)