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. NEDC is challenging the new rule in the Ninth Circuit and also filed a motion in the Ninth Circuit after the Supreme Court sent the current case back to the Ninth Circuit. In that motion, NEDC is asking the Ninth Circuit to direct the District Court to uphold the Ninth Circuit’s ruling that stormwater discharges from ditches and culverts along forest logging roads are point sources, arguing that the Supreme Court did not overturn this part of the Ninth Circuit’s decision. AF&PA has intervened in the new Ninth Circuit case and will join other defendants and defendant-interveners in a reply to NEDC’s motion in the current case, pointing out that the Supreme Court held it was not necessary to rule on the point source issue since the runoff was exempted from regulation because it was not associated with industrial activity.
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 2013 Continuing Resolution. Separate legislation, H.R. 2541 and S. 1369, also had been introduced in the 112th Congress to clarify that silvicultural activities do not require permits.
EPA's Silviculture Rule
EPA’s 1976 rule properly recognizes that forest management sources, including forest roads, are more effectively regulated through best management practices (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. Permit amendments addressing site-specific needs 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 to 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.