How Did We Get to this Point, And What’s Next?
On September 6, 2006, the Northwest Environmental Defense Center filed a lawsuit, NEDC v. Brown, alleging that the defendants’ failure to obtain a National Pollutant Discharge Elimination Permit (NPDES) for logging roads constructed on Oregon’s Tillamook State Forest constituted a violation of the Clean Water Act. The six defendants—the Oregon State Forester, the Oregon Board of Forestry, and four timber purchasers—obtained a dismissal of the complaint from the U.S. District Court for the District of Oregon six months later. Oregon Forest Industries Council, American Forest & Paper Association and Tillamook County had intervened in the case to assist in the defense.
The plaintiff, NEDC, appealed the case to the U.S. Court of Appeals for the Ninth Circuit which, reversing a legal history stretching back to 1976, on August 17, 2010 ruled that forest roads and their stormwater management systems are “point sources” discharging “pollutants” into “waters of the United States” and on that basis are indeed subject to NPDES permit requirements. The court then proceeded to reverse a 21-year old stormwater regulation and ruled that because forest roads are associated with the “industrial activity” of logging, they require NPDES stormwater permits. Since this new precedent seemed to establish extremely burdensome requirements for the practice of forestry on both public and private lands and called decades of accepted practice into question, the defendants petitioned the full Ninth Circuit Court to rehear the case.
On May 17, 2011, the Ninth Circuit Court denied this request, leaving only possible U.S. Supreme Court review—or an act of Congress—between imposition of an onerous permitting process (and the uncertainties and delays it would entail) and the permanent right to practice forestry under conditions governed by state Best Management Practices systems—at least within the Ninth Circuit’s large jurisdiction (the Western states and a portion of the Intermountain states). EPA does have the authority to provide relief under the stormwater program, but this relief would not be reliable for the long term, as environmental activists could challenge it in court or future EPA administrations could modify it.
What would a permit program look like?
Judging from existing NPDES programs, the ruling would call for establishment of a general permit that would, at a minimum, require the construction of any logging road to comply with state BMPs. In addition to that, it would require monitoring, with specified frequency and sampling. It would require a Stormwater Management Plan, prepared by a qualified professional, specifying site-by-site controls, identifying the responsible party, and detailing a monitoring and inspection routine.
Finally, NPDES permits generally require corrective action for adverse incidents, accompanied by changes to the controls (that is, to BMPs), and for the plan to be amended in response. Compliance is mandatory and subject both to enforcement penalties and to citizen suits. Finally, there would be record-keeping and reporting requirements.
The Ninth Circuit Court’s decision in NEDC v. Brown imposes a huge regulatory burden on Western logging access, regardless of ownership.
All NPDES permits and point source activities are subject to enforcement actions by either the government or through citizen suits. Activists might, for instance, allege the right of public participation in reviewing a landowner’s or operator’s proposed compliance with the general permit. They might demand incorporation of site-specific BMPs into the permit, such that modification would require additional public participation and agency approval. They might seek involvement of the U.S. Fish & Wildlife Service and National Marine Fisheries Service in selection of site-specific BMPs. And activists would have a new tool to limit timber management in impaired watersheds and in operations close to “high quality” waters.
We would be, in short, a long way from practical application of EPA’s 1976 definition of “nonpoint source silvicultural activities” and the agency’s recognition of state authorities on BMP supervision.
How did the Ninth Circuit—well-known for its involvement in directing management of the National Forests—get to this point?
In 1976, EPA defined “silvicultural point source”—in the Clean Water Act’s context—as “any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States.” It specified, furthermore, that these activities are the “only” point sources associated with silvicultural activities and went on specifically to exclude “nonpoint source silvicultural activities, including harvesting, site-preparation, pest and disease control, thinning, cultural treatment, prescribed burning, reforestation, and road construction and maintenance from which there is natural runoff.”
For 35 years, EPA has classified logging as a non-point source under the Clean Water Act’s “silvicultural definition,” but the Ninth Circuit overturns that interpretation for the states under its jurisdiction.The preservationist groups’ first campaign to limit the scope of the silvicultural definition failed when the federal courts in Arkansas and Georgia rejected their efforts in the 1990s to require NPDES permits for forest management on national forests. The activists then obtained a ruling, again from the Ninth Circuit, that—in spite of “pest and disease control” operations’ being named among the exempt activities—the pesticides are nonetheless applied through a point source. This 2002 Ninth Circuit ruling required NPDES permitting for aerial pesticide applications. The Bush Administration’s EPA formally disagreed with the ruling and reaffirmed its long-standing interpretation of the silvicultural definition. (This permit requirement has since expanded to non-forestry pesticide applications. The Sixth Circuit ultimately overturned EPA regulations eliminating the need for an NPDES permit where pesticides are applied over or into water in accordance with the EPA-approved product label. A general NPDES permit is scheduled to go into effect in October, but the House of Representatives adopted legislation in April to restore the regulations, and the bill is now pending in the Senate.)
Meanwhile, in 1987, Congress adopted amendments to the Clean Water Act, establishing mandatory “Phase I” and discretionary “Phase II” stormwater discharge NPDES permitting provisions, creating another opening for the activists. In 1999, the Environmental Defense Center and the Natural Resources Defense Council petitioned for a review of the discretionary “Phase II” permitting system, raising the issue of EPA’s declining to require stormwater NPDES permits for forest roads. In 2003, the Ninth Circuit ruled that EPA had not properly considered this matter and asked EPA to respond to these petitioners’ request in a manner capable of judicial review. During the eight years since the decision, EPA started the review but has never completed it.
Into this history dropped NEDC v. Brown. In essence, the Ninth Circuit ruled that a system of stormwater management using ditches and culverts—that is, following a typical BMP’s water management protocol—is “clearly” within the Clean Water Act’s definition of a point source and that EPA had lacked authority to designate such a system as a nonpoint source back in 1976. Furthermore, the Court found that logging and associated roads fit within EPA’s definition of “industrial activities” under the mandatory Phase I stormwater NPDES permitting program.
How did the Ninth Circuit get to the mandatory permit?
It cited EPA’s reference to a Department of Labor Standard Industrial Code (“SIC”) governing a broad category of “wood manufacturing”—covered as an “industrial activity” subject to mandatory “Phase I” stormwater permitting—and pointed out that this broad category also included “logging” under a subcode. This lumping together seems to have impressed the Ninth Circuit greatly, in spite of EPA’s specific exclusion of logging in its 1990 Phase I regulations. The Ninth Circuit, however, was determined, opining that “it is undisputed that logging is an industrial activity” because it falls under the “wood manufacturing” code. The Court further affirmed that EPA “concedes” that logging fits this definition, even though EPA had filed a brief arguing that it had excluded logging from the definition of “industrial activity.”
The implication is that state BMP programs, in spite of the strong record of their overall effectiveness, do not give EPA enough regulatory authority.
The court seems not to have understood, or accepted, that these DOL classifications are very general, were not proposed in the context of environmental impacts, and in any case have been revised since 1990. Under today’s classification, the Department of Labor places “logging” in the agricultural category.
What is EPA’s position throughout these developments?
Although in litigation EPA has defended the silvicultural exemption as first defined in its 1976 regulation, the agency did, in fact, attempt to eliminate the silvicultural nonpoint source definition during the TMDL--“Total Maximum Daily Load”--rulemaking in 1999 and proposed to regulate forest management as a point source under applicable TMDLs. The law requires a state to develop a TMDL for any water body that is “impaired,” meaning it is not meeting water quality standards. However, these proposals were dropped from the final rule in 2000 after considerable protest from the forestry community. (Ultimately, Congress blocked the TMDL rule, and EPA withdrew it in 2003.)
EPA has had little to say publicly since the 2010 NEDC v. Brown decision. The agency has indicated that it is willing to provide an NPDES permit for anyone who is threatened with a citizen suit. While it recognizes the decision is limited to the Ninth Circuit for now, it has reached no position on what do. The government did file an amicus brief during the rehearing process, proposing that EPA had never before considered the question of whether runoff through ditches and culverts might be considered “natural,” and the Ninth Circuit would be the first court to consider this interpretation. The Ninth Circuit’s denial of the rehearing acknowledged this statement and found that this “ambiguous” point allowed review of a 35-year old regulation.
EPA is clearly struggling with the complexities of an NPDES program limited to the Ninth Circuit and the expanded complexities of a nationwide program. Not the least of these complexities is the question: what exactly is a “forest road?” There is considerable concern among the states about the cost of such a program, both in scarce government resources and to rural economies. However, this concern has not led EPA to seek a way out. The Agency seems focused on the complexities of a permit program rather than on the need for such a program in the first instance.
Meanwhile, Congress is aware of the impending crisis. Forty-four bipartisan members of the House of Representatives sent a letter to EPA Administrator Lisa Jackson on May 23, 2011, urging her to defend her regulations at every opportunity. It seems that introduction of legislation to restore forestry’s nonpoint source status is likely.
Implications may reach beyond the West, opening a new venue for green activists to obstruct or delay any proposed forest operation.And finally, the industry defendants have announced their intention to seek review by the U.S. Supreme Court. Pursuing a case at that level is always an uphill battle and will require the support of the entire industry, as well as friends and allies in other public and private sectors, congress, and states. The initial request is due in mid-August, although an extension of time from the Court is possible. Supporting briefs would be due 30 days later. Since EPA was not a party in the case, it is not clear whether it will submit a brief unless the Court asks it to. Such a request would be a good sign that the Court is taking the case seriously, although it would not guarantee that the Court will agree to review the decision.
At this point, the industry faces the possibility of a nationwide NPDES program for many of our roads. However, that program is not in effect as yet, and there are avenues available to retain our current stream-protection system, based on state-governed BMP programs.
THE AUTHOR
Chip Murray is Vice President for Policy & General Counsel of the National Alliance of Forest Owners. Prior to taking this position last year, he was Deputy General Counsel at the American Forest & Paper Association. Chip has counseled the industry on forestry issues since 1989.
Editor’s Note: The National Alliance of Forest Owners has assumed the lead national forest industry association role on this issue and has formed a coalition of allied associations to plan the path ahead. FRA participates in this coalition.