U.S. EPA is writing rules that would require pollution-discharge permits for the muddy runoff from logging roads -- regulations mandated by a court ruling that sparked bipartisan political backlash.
The agency recently sent a draft notice of its intent to regulate logging-road runoff to the White House Office of Management and Budget. EPA said it would seek public comment on several options before proceeding with the formal rulemaking.
At issue, EPA said, is a controversial 2010 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that tossed out the agency's 35-year-old policy of allowing loggers to use best management practices instead of pollution-discharge permits.
Trying to soothe its critics, EPA said in a statement that it is considering "flexible" options -- including some that would require no permit -- in recognition of some land-management practices in use to minimize the water pollution from forest roads.
"EPA is considering flexible options including non-permitting options that recognize the vastness, diversity, and complexity of the nation's logging roads networks and existing effective federal, state, local, and tribal best management practice frameworks," the agency said.
Political response to the 9th Circuit ruling in Northwest Environmental Defense Center v. Brown has been negative on both sides of the aisle on Capitol Hill.
Congress voted in December to stay permitting of logging roads, a measure that will expire Oct. 1. Bipartisan legislation (S. 1369 and H.R. 2541) has been filed in both chambers that seeks to restore EPA's former regulatory approach.
Timber industry groups and attorneys general from 26 states, meanwhile, have petitioned the Supreme Court to take up the case (Greenwire, Oct. 18, 2011).
"The most important word in our mind is 'certainty,'" said Dave Tenny, president and CEO of the National Alliance of Forest Owners. "In all of this, we're looking for a solution that will produce certainty. At this point, we know that the 9th Circuit Court of Appeals is not giving the deference to EPA's administration of the Clean Water Act that it should have."
The high court has requested the federal government's position. Solicitor General Donald Verrilli is expected to file a brief by the end of May.
A lawyer familiar with the litigation said Verrilli is working in tandem with EPA in an attempt to craft a brief urging the high court not to take up the industry-backed petition while simultaneously including soothing language making it clear that the administration is aware of the concerns raised by the 9th Circuit decision and will try to address them.
While that legal process plays out, EPA said it is working with the Bureau of Land Management and the U.S. Forest Service to develop its regulatory approach.
Environmental law groups initially filed suit over two logging roads in Oregon's Tillamook State Forest.
Ditches, culverts and channels there collect the runoff, discharging the muddy stuff into nearby rivers. The sediment "adversely affects fish ... by smothering eggs, reducing oxygen levels, interfering with feeding, and burying insects that provide food," Judge William Fletcher wrote in the 9th Circuit opinion.
Asked what he hoped to see in what the government submits to the Supreme Court, Tenny said: "We hope that the solicitor general is going to agree that the 9th Circuit got it wrong."
Reporter Lawrence Hurley contributed.