Supreme Court Review and EPA Action
The U.S. Supreme Court in a 7-1 opinion reversed the Ninth Circuit decision in Northwest Environmental Defense Center v. Brown (NEDC v. Brown) – the case in which the Ninth Circuit held that Clean Water Act point source permits were required for stormwater runoff from forest logging roads. In reversing the Ninth Circuit, the Supreme Court upheld the Environmental Protection Agency’s (EPA’s) 35-year regulation exempting channeled logging road stormwater runoff from permitting requirements.
Just before oral arguments in the Supreme Court, EPA issued a revised rule in an effort to address the Ninth Circuit decision by clarifying that stormwater runoff from forest logging roads is not runoff associated with industry activity, and thus, does not require permitting. The Supreme Court decision does not address the new rule directly as it was not at issue in the case, although the court did hold that the new rule did not moot the Supreme Court case. While the U.S. Supreme Court held that the Environmental Protection Agency (EPA) has authority to exempt discharges of channeled stormwater runoff from logging roads from Clean Water Act (CWA) point source permitting, the plaintiffs in the case are continuing legal efforts in the Ninth Circuit to regulate the runoff.
The Silviculture Regulatory Consistency Acts (H.R. 2026 and S. 971) were introduced on May 16th, in the House by Representatives Jaime Herrera Beutler (R-WA) and Kurt Schrader (D-OR); and in the Senate by Senators Ron Wyden (D-OR) and Michael Crapo (R-ID). AF&PA supports this legislation that would prohibit EPA from requiring permits or directly or indirectly requiring states to permit stormwater runoff from forest roads, preserving EPA’s 37-year old policy treating forest roads as nonpoint sources under the Clean Water Act (CWA) addressed under state-adopted Best Management Practices (BMPs). Rep. Jaime Herrera Beutler successfully offered an amendment to the House Farm bill to include the Silviculture Regulatory Consistency Act. AF&PA supports this provision as the Farm Bill moves to a conference.
In December 2011, Congress enacted legislation in the FY 2012 Omnibus Appropriations Act preventing the Ninth Circuit decision from taking effect until September 30, 2012. This moratorium was extended in the FY 2013 Continuing Resolution.
EPA's Silviculture Rule
EPA’s 1976 rule properly recognizes that forest management sources, including forest roads, are more effectively regulated through BMPs developed by states and funded by EPA. BMPs work because they are adaptable to local circumstances, unlike permits, which set general standards that do not consider local conditions. Permits likely would be slow and costly to obtain.
Recent studies have shown that throughout the country these BMPs are both effective and followed.
Forest Roads are Not a Major Source of Water Pollution
- Studies show that BMPs are widely used and substantially reduce water quality impacts (e.g., sediment, temperature, dissolved oxygen, herbicides), providing substantial protection for water quality and fish habitat.
- Since 1976, EPA has ranked forestry as a "minor contributor" to water pollution, a conclusion based on the agency’s own data.
- Twenty percent of U.S. forestland is under some type of conservation program, which is almost twice the world average of 11 percent.
AF&PA members are required to follow a set of sustainable procurement principles that, among other things, encourage the use of BMPs and trained loggers