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2018 National Conference of Private Forest Landowners

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FF 5-11-11 Reinstating Income Averaging for Tax Purposes
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Forest Roads May Require EPA Permits

The Forest Landowners Association is following a disconcerting decision of the Ninth Circuit US Court of Appeals. In the original suit, The Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester and others. NEDC argued that the defendants violated the Clean Water Act (CWA) and that logging roads are point sources—requiring National Pollutant Discharge Elimination System (NPDES) permits. The District Court ruled in favor of the defendants, upholding the long-standing Silvicultural Exemption.
On August 17, 2010, the Ninth Circuit, ignoring the CWA silvicultural exemption, overturned the original decision. The court determined that forest roads, and their stormwater runoff gathering systems, channel stormwater with pollutants into waters of the United States, and are indeed, point sources of pollution subject to the NPDES permit. The Appeals Court ruled that EPA lacked authority to designate forest road systems as non-point in the original 1976 regulations.
The defendants have requested a rehearing, asking for review bythe additional judges on the Ninth Circuit, arguing that the court cannot ignore EPA’s own interpretation of its stormwater regulations. The court has requested an additional briefing, but there is no deadline for a final decision. Until the Ninth Circuit resolves the rehearing request, the decision is technically not yet in force. Nonetheless, EPA has indicated that it considers the decision to have nationwideeffect.
Meanwhile, in Congressional action that may speak to the forest roads issue, Maryland Sen. Ben Cardin (D) has filed legislation that aims to stop highway runoff from polluting local waterways. The bill would require the U.S. Department of Transportation to develop performance-based standards to protect watersheds surrounding federally funded highways. The idea is that highways tend to become glazed with a mixture of oil, tailpipe emissions, brake dust, and other toxins—all of which can wash into nearby lakes, rivers and streams with a single rainstorm.

FLA supports the long-standing Silvicultural Exemption. Compliance by landowners and the forest products industry has a proven record of complying with state and federal regulations and providing clean water as a non-timber resource benefiting all of society.
To learn more about these issues, or others affecting private forest landowners, please contact Frank Stewart or call (703) 549-0347.





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