January - March 2013
Forest Roads Litigation Update
By Richard W. Goeken*
Today, the Supreme Court issued its long-waited decision in Decker v. NEDC, No. 11-338. The Supreme Court's decision reversed the Ninth Circuit Court of Appeals and, in a 7-1 ruling, upheld the Environmental Protection Agency's (EPA) interpretation that storm water runoff collected from forest roads was exempt from federal permitting requirements under the Clean Water Act. Specifically, the Court deferred to EPA's determination that the ditches, channels and culverts that collect storm water runoff from forest roads are "directly related" only to the harvesting of raw materials, rather than to "manufacturing, processing, or raw materials storage areas at an industrial plant" and are therefore exempt from federal permitting. The Court further noted that EPA's interpretation exempting forest road run-off from federal permitting had been the agency's well-established practice and was not merely the result of a recent change resulting from shifting policy preferences or as the result of litigation against the agency.
Of particular interest to FLA members is the Court's explanation that it was reasonable for EPA to exempt run-off associated with forest roads from federal permitting requirements because the State of Oregon, where the case had arisen, had a comprehensive system of Best Management Practices that directly addressed the issue. Specifically, the Court noted that:
[Oregon's Best Management Practices] include rules mandating filtration of storm water runoff before it enters rivers and streams, Ore. Admin. Rule 629- 625-0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629-625-0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629-625-0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads-and in particular of state forest roads-are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of storm water runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive.
Plainly, the existence of these state Best Management Practices was a significant aspect of the Supreme Court's decision. In this regard, the Water Committee of the Southern Group of State Foresters published a report in September 2012 assessing the "Implementation of Best Management Practices" in the Southern Region and noted a "generally positive change" with respect to implementation of state BMPs for forest roads across the region.
Additional information and background about the case can be found in the 2013 January/February edition of Forest Landowners Magazine, "The Long and Winding Road Continues."
FLA CEO Scott Jones commented, "This is a significant win for private forest landowners but we are still exposed to the promise of the NEDC to continue litigation until permits are required for all forest roads. This is exactly why Congress must act to make it clear that forest roads are not point sources of pollution under the Clean Water Act thus bringing certainty to all private forest landowners."