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Only Congress Can Provide Legal Certainty by Preserving EPA Regulation of Forest Roads as Nonpoint Sources

H.R. 2026 & S. 971

End legal uncertainty by supporting bipartisan legislation, the Silviculture Regulatory Consistency Act (S. 971 and H.R.2026), to preserve EPA’s 37-year old policy treating forest roads as nonpoint sources under the Clean Water Act (CWA) regulated under state-adopted Best Management Practices (BMPs).

Lead co-sponsors are Senators Wyden (D-OR) and Crapo (R-Idaho), and Representatives Herrera Beutler (R-WA) and Schrader (D-OR).


Key Points

EPA’s longstanding policy regulating forest roads as nonpoint sources is the right approach

  • For 37 years, EPA has maintained that forest roads are nonpoint sources best regulated through state-adopted BMPs.
  • Studies show that the costs of new point source permits on federal, state, county, tribal and private forest road owners and implementing state agencies could reach billions of dollars and tens of thousands of jobs.
  • Permits and other point source regulations expose forest owners to costly and disruptive citizen lawsuits for even minor paperwork errors.
  • Forestry and clean water experts agree that point source permits for forest roads will not improve water quality compared to BMPs.  Permits and other point source regulations may hurt the environment by accelerating the fragmentation and loss of private forestlands. 

The specter of litigation challenging EPA’s longstanding policy continues the legal uncertainty.

  • The Supreme Court reversed the 2011 Ninth Circuit ruling that forest roads are subject to mandatory point source stormwater permits but did not address the Ninth Circuit’s other ruling in the case that forest roads are point sources.
  • Plaintiffs have claimed victory on the point source issue and have asked the Ninth Circuit to re-issue its holding that forest roads are point sources so they can continue pursuing permits.
  • The uncertainty over whether forest roads are point sources leaves them subject to potential regulation, including permits, under EPA’s discretionary stormwater point source authority.
  • EPA is reviewing whether to use its discretion to regulate forest roads as point sources to comply with a separate 2003 Ninth Circuit ruling (Environmental Defense Center v. EPA).
  • Plaintiffs have told the Supreme Court and the media they will pursue EPA’s pending review, further litigation, and other means to require permits and other point source regulation for forest roads. 
  • Plaintiffs have also challenged EPA’s December 2012 rule clarifying that forest roads do not require mandatory point source permits.

Only Congress can provide legal certainty for federal, state, local and tribal governments, and forest owners.

  • The Administration, Congress, states, counties, farmers, tribes, businesses, non-profit organizations and forest owners all agree that  forest roads are nonpoint sources best regulated by state BMPs.
  • Congress can provide legal certainty by enacting the bipartisan Silviculture Regulatory Consistency Act (SRCA) that preserves the regulation of forest roads as nonpoint sources under the CWA. 
  • The SRCA preserves EPA’s longstanding policy and ensures that forest roads will continue to be regulated under state-adopted BMPs, which are proven to be highly effective. 
  • The SRCA protects federal, state, county, tribal and private forest roads from the uncertainty of costly permit requirements, other point source regulation, and ongoing litigation, thereby preserving jobs, recreational access, environmental benefits and investments in working forests.

Background

In 2011, the U.S. Court of Appeals for the Ninth Circuit held in Northwest Environmental Defense Center (NEDC) v. Brown that culverts and drainage ditches along a county forest road used for timber harvest and other activities are "point sources” requiring mandatory NPDES permits under EPA’s industrial stormwater discharge regulations.  The ruling applied to federal, state, local, tribal and private forest roads throughout the Ninth Circuit. The Ninth Circuit decision overturned 37 years of EPA regulations treating forestry activities and forest roads as nonpoint sources best regulated under state-developed BMPs, rather than as point source requiring permits typically reserved for factories and similar facilities.

The breadth of the decision generated significant concern throughout the country. Congressional leaders introduced bipartisan legislation in 2011 (S. 1369 and H.R. 2541) to affirm EPA’s longstanding policy.  Congress included a one-year ban on issuance of NPDES permits for forestry activity in the FY 2012 Consolidated Appropriations Act, preventing the Ninth Circuit decision from taking effect. As with the bills in the 112th Congress, the Silviculture Regulatory Consistency Act would restore forest roads and forest management to the nonpoint source category subject to state-adopted best management practices as EPA intended in 1976. It would codify the 1976 EPA silviculture rule in an amendment of section 402 of the Clean Water Act to exclude stormwater discharges from the listed forest management activities, including forest roads, from permits and other regulation under the point source stormwater program.

In 2012 the U.S. Supreme Court agreed to review the decision as Decker v. NEDC. In December 2012, just prior to oral argument, EPA issued a new nationwide rule reaffirming that forest roads do not require mandatory NPDES permits for stormwater discharges associated with industrial activities. On March 20, 2013 the Supreme Court reversed the Ninth Circuit’s ruling requiring a mandatory industrial discharge permit but did not address the Ninth Circuit’s other ruling that forest roads are point sources.

EPA is responding to a separate Ninth Circuit order, issued in 2003, directing the agency to use its discretionary authority under the industrial stormwater discharge regulations (commonly referred to as "Phase 2”) to review whether point source regulation of forest roads is necessary.  EPA began its review in May 2012.  EPA has stated that it does not believe at this time that  NPDES permits are necessary for forest roads, but that it would consider "regulating” roads as point sources under Phase 2. EPA has never before used the Phase 2 authority to "regulate” an activity without requiring permits.

NEDC has declared to the Supreme Court and to the media that it intends to continue to pursue federal permits for forest roads both through the EPA’s review and through further litigation.  When the Supreme Court returned the Decker case to the Ninth Circuit in April, NEDC immediately filed a motion asking the Ninth Circuit to re-issue its ruling, which was not addressed by the Supreme Court, that forest roads are point sources. NEDC argued that re-issuance of the ruling would allow the plaintiff to further pursue point source permits for forest roads.

NEDC has also filed a separate lawsuit in the Ninth Circuit challenging the EPA’s December 2012 clarification rule.  Unless NEDC drops the lawsuit in light of the Supreme Court’s decision, the case will resume June 13 with final filings due in September.

 

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