Forest Owners Support Supreme Court Decision to Review Forest Roads Case
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The National Alliance of Forest Owners (NAFO), Washington, D.C., USA, has responded enthusiastically to news that the U.S. Supreme Court will review the U.S. Court of Appeals for the Ninth Circuit Court's ruling in NEDC v. Brown. The Ninth Circuit ruled last year that forest roads are "point sources" of water pollution requiring industrial discharge permits typically applied to factories and sewage plants, a decision that overturns EPA's 35 years of regulation of forest roads under the Clean Water Act.
"The Supreme Court's decision to review this case is a welcome development for forest landowners across America, who for 35 years have contributed to one of the nation's best success stories under the Clean Water Act," said Dave Tenny, NAFO President and CEO. "It validates the opinions of the Solicitor General, 29 state attorneys general, and forest owners and operators across the country, who all agree that the Ninth Circuit's decision was wrong."
Although the Solicitor General in his May 24 brief to the Supreme Court acknowledged that the Ninth Circuit ruling was wrong, he recommended the Court not review the case urging that "the complex regulatory issues can be addressed more definitively and in a more nuanced fashion by Congress and EPA."
According to NAFO, Congress and the Administration joined forest owners to support EPA's historical treatment of forestry and forest roads as non-point sources by taking action last December in the Fiscal Year 2012 Consolidated Appropriations Act. The effort, achieved with bipartisan support in both the Senate and House, prevented the Ninth Circuit's misinterpretation of the Clean Water Act from taking effect, but expires this September 30, NAFO notes.
"The Supreme Court's decision raises a significant question regarding the need for further administrative action by the EPA pending a final decision by the Court," Tenny continued. "At this point, undertaking an administrative process without knowing the legal context would be a questionable use of time and resources."
NAFO explains that EPA began an administrative process on May 23 to address the Ninth Circuit's ruling and maintain the agency's longstanding practice of using Best Management Practices rather than permits to regulate rainwater runoff from forest roads. EPA has not yet introduced a proposed rule, which has cast doubt on whether the agency would complete a rulemaking before the September 30 expiration of legislation. A final EPA rule would be challengeable directly to the Ninth Circuit, inviting a continuation of the litigation cycle, according to NAFO.
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