All three branches of the federal government have weighed in on the adverse decision from the U.S. Court of Appeals for the Ninth Circuit that changed the rules on how forest roads are regulated under the Clean Water Act (CWA). The Court ruled that forest roads used for timber harvest on federal, state and private tribal lands are “point sources” requiring special industrial discharge permits such as those required for sewage plants and factories.
Why all the attention? The Ninth Circuit was regulating from the bench, unraveling the U.S. Environmental Protection Agency’s (EPA) 35-years of successful regulation of forest roads through state-administered Best Management Practices (BMPs) that have been proven to minimize impacts on water quality.
Ironically, environmentalists were the plaintiffs in this case in which the result of the ruling—a permit requirement—would do nothing to improve water quality – a point confirmed by leading Federal forest managers. Instead, the ruling would create significant legal and economic uncertainty for forest owners and operators. Endless litigation would result in thousands of jobs lost during our anemic economic recovery.
The Executive, Judicial and Legislative branches have all taken notice of this case and they all agree that the Ninth Circuit ruling was wrong. Just last week, the House Transportation & Infrastructure Committee approved without dissent legislation that would prevent the Ninth Circuit ruling from taking effect but that expires at the end of September. This permanent solution has strong bipartisan support and is aligned with the temporary measure President Obama signed into law in 2011. Meanwhile, the U.S. Supreme Court has announced it will review the decision, with a decision expected in spring. Additionally, the EPA has begun a rulemaking in response to the Ninth Circuit ruling.
Two things would provide forest owners the legal certainty to put this issue to rest once and for all—a permanent legislative solution from Congress and the Supreme Court overturning the Ninth Circuit ruling, something it does often with that jurisdiction.
We thank the Administration for its opposition to the Ninth Circuit’s decision and its desire to seek a policy solution that does not include a permit requirement. At the same time, while we await news from the High Court, it makes little sense for the EPA to continue a rulemaking it began in anticipation of the Court declining to review the Ninth Circuit’s decision. Pursuing the rule ahead of the Court’s decision creates legal confusion and could lead to more litigation, especially given that the rule can be challenged directly to the Ninth Circuit without consideration by a lower court. It would be a more efficient and effective use of the agency’s resources to focus on helping the Supreme Court overturn the Ninth Circuit decision once and for all and thereby make the rulemaking unnecessary.