This past Wednesday forest owners and operators won an important victory with the U.S. Supreme Court ruling in Decker v Northwest Environmental Defense Center (NEDC). This is a critical step in our ongoing effort to preserve the U.S. Environmental Protection Agency’s (EPA) longstanding policy from 1976 that forest management and associated forest roads are nonpoint sources under the Clean Water Act best regulated through state-adopted Best Management Practices.
By a 7-1 vote, the Court reversed the U.S. Court of Appeals for the Ninth Circuit’s 2011 ruling that forest roads are subject to a mandatory permit requirement under EPA’s point source rules. This is a clear victory because it validates EPA’s longstanding interpretation of these rules that logging is not an “industrial activity” and, therefore, does not trigger a mandatory permit for forest roads.
While we are justifiably encouraged by the Supreme Court’s ruling, we still have important work to do. The Supreme Court chose not to address the Ninth Circuit’s conclusion that forest roads must be considered point sources, leaving these roads subject to EPA’s discretionary authority under the Clean Water Act to require a permit or to impose other federal regulatory requirements. This leaves open a fundamental question – are forest roads point sources or are they not? The answer to this question is critical to policy making going forward.
In Environmental Defense Center v. U.S. Environmental Protection Agency, the Ninth Circuit in 2003 instructed EPA to review whether the regulation of forest roads under the agency’s discretionary point source authority was warranted. Although the EPA has been slow to comply with this ruling, the agency stated in its December 2012 stormwater rule clarification that it intends to proceed with the review required by the Ninth Circuit.
Such a review is unnecessary if forest roads are nonpoint sources. The necessary and critical policy objective going forward, therefore, is settling once and for all the question of whether forest roads are or are not point sources.
NEDC told the Court during oral argument and this week told the media that it will pursue all available avenues, including further litigation, until permits are required for forest roads. Undoubtedly they will seek to pressure the EPA to apply point source regulation to forest roads as the agency conducts its review under the 2003 Ninth Circuit decision. Litigation will almost certainly follow whatever EPA decides to do, placing us right back where we started – in a state of legal uncertainty and another costly round of litigation. Such an outcome will not help improve water quality as numerous studies show that state-adopted best management practices are effective in protecting water quality.
We can avoid the specter of renewed and ongoing legal uncertainty by a clear statement of policy establishing once and for all that forest management and associated forest roads are nonpoint sources. This is the objective ahead of us. Our task is to work with Congress and the Administration to cement in place EPA’s 37-year policy and thereby maintain the important and successful role states, working with local resource experts and stakeholders, play in the appropriate regulation of forest roads as nonpoint sources under the Clean Water Act.