The U.S. Environmental Protection Agency (EPA) received comments from 80 individuals and organizations earlier this month regarding its proposed rulemaking on the application of the agency’s “point source” stormwater rules to forest roads. We are pleased that the agency’s proposal aims to clarify that logging is not an industrial activity under those rules and thus not subject to the statute’s mandatory “point source” permit (NPDES) requirement. However, now is not the time for EPA to finalize its rule. The majority of the comments to EPA, including NAFO’s, called for the EPA to focus on preserving the existing status of forest roads as “nonpoint” sources under the Clean Water Act and urged the agency to hold off on issuing a final rulemaking so the Supreme Court can determine whether such a rulemaking is even necessary.
It is uncommon to tackle an issue involving all three branches of government. Yet, the Ninth Circuit Court of Appeals made this necessary by overturning EPA’s 35-years of successful regulation of forest roads when it ruled that forest roads used for timber harvest are point sources requiring NPDES permits typically reserved for sewage plants and factories. Since this ruling in May 2011, Congress—with bipartisan support—has acted to temporarily prevent that ruling from taking effect, EPA has begun the rulemaking process and the Supreme Court has taken up the case. This is a lot of effort considering that there is strong consensus, including agreement from 31 attorneys general and the U.S. Solicitor General, that the Ninth Circuit ruling was wrong.
If the Solicitor General has urged the Supreme Court to overturn the Ninth Circuit, why, then, does EPA feel compelled to expend the effort on a rulemaking? Ultimately that’s a question for the EPA to answer, but it appears they may be using the rulemaking as part of a strategy to urge the Court to rule on the case without addressing the threshold question of whether forest roads are point sources. Initially the Solicitor General recommended the Supreme Court not review the decision, arguing that the problem could be solved by the EPA and Congress and that EPA intended to propose a rule to address at least the question of whether forest roads require a permit. The Court’s decision to review the case should have signaled to EPA to put its rulemaking on hold in deference to the Court. Nonetheless, EPA has proceeded with a proposed rule and denied requests for an extended comment period allowing the public to comment both on the rule and on the arguments affecting the proposed rule in the legal briefs, the last of which are being filed this week. EPA’s desire to move quickly suggests that the Solicitor General may use the rulemaking to argue before the Court that, because the agency has addressed the question of permits, the Court need not address the question of whether forest roads are a point source.
Rather than pursue such a course, EPA should stand down on its rulemaking and make a stronger effort to defend its existing rules. A final rule could create even more confusion and legal uncertainty by getting ahead of the Supreme Court and providing yet another target for eager litigators. Once final, litigators can challenge the EPA’s rule directly to the Ninth Circuit. The uncertainty of another Ninth Circuit ruling on the heels of a Supreme Court decision does little to resolve this issue and could create more legal uncertainty at the very moment when federal, state, tribal and private forest owners are looking to resolve this issue once and for all.
Only the Court or Congress can settle the most fundamental question of law, which is to confirm that forest roads are nonpoint sources and, therefore, not subject in the first place to the stormwater rules EPA is trying to amend. The consensus shared by all forest owners, state implementing agencies, 31 state attorneys general, the National Governor’s Association the National Association of Counties, the EPA, the Solicitor General and many others is that EPA’s historic treatment of forest roads as nonpoint sources is legally correct. The focus now should be to settle that legal question once and for all. Once resolved, the need for further regulation goes away, and we can return to building on the successes achieved over the last 35 years under the current program.