The Obama administration today asked the Supreme Court not to take up a dispute over whether stormwater washing off logging roads is subject to Clean Water Act permitting.
The move was expected after U.S. EPA announced its intention this week to pursue rulemaking on the issue in an effort to resolve questions raised by a 2010 ruling by the 9th U.S. Circuit Court of Appeals (Greenwire, May 22).
The 9th Circuit held that logging-road operators should be required to apply for National Pollutant Discharge Elimination System (NPDES) permits, provoking a political backlash in Congress and in affected states.
Critics say the 9th Circuit ruling ruined a process that had worked for 35 years that let states regulate runoff without EPA permitting.
EPA is planning to issue a rule stating that discharges from logging roads do not require NPDES permits because they're not included in the definition of "stormwater discharge associated with industrial activity."
There are two related petitions before the high court: Decker v. Northwest Environmental Defense Center and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, in which the state of Oregon and the timber industry, respectively, are seeking review of the appeals court decision. A total of 26 attorneys general have supported the call for Supreme Court action.
Legislation has already been introduced in Congress that would reverse the ruling. Congress also voted in December to stay permitting of logging roads, a measure that will expire Oct. 1.
In today's brief, Solicitor General Donald Verrilli told the Supreme Court there's no need to take the case because EPA and Congress are both working on the matter.
Verrilli wrote, "While application of NPDES permitting requirements to petitioners' stormwater discharges could entail significant practical burdens if the current regulatory scheme remained unchanged, those concerns are being addressed by both Congress and EPA."
He did add, however, that the 9th Circuit had incorrectly decided the case by failing to give EPA the necessary deference over its application of the law.
Industry groups still want the justices to decide the issue despite the administration's efforts, largely because they don't want the 9th Circuit decision to be left in place and revisited at a later date.
"Everybody now agrees the 9th Circuit was wrong to unilaterally change the rules on forest roads contrary to EPA's policy," said Dave Tenny, president and CEO of the National Alliance of Forest Owners. "It is disappointing and a bit puzzling that the solicitor general would reach that conclusion, supported by 26 attorneys general, and then not pursue Supreme Court review."
Paul Kampmeier is the Washington Forest Law Center attorney handling the case on behalf of the Northwest Environmental Defense Center, which is challenging the lack of permitting. He said he disagreed with EPA's proposal but was glad the administration had asked the court not to intervene.
He also welcomed the opportunity to weigh in during the rulemaking process.
"Industrial logging roads often pollute streams, and NPDES permits are a proven method for reducing point-source pollution," Kampmeier added.
Click here to read the brief.