Today was supposed to be the day we learned whether the U.S. Supreme Court would review the Ninth Circuit’s opinion in Northwest Environmental Defense Center v. Brown, the case which held that channeled rainwater from forest roads must be regulated as point-source pollution under the Clean Water Act’s National Pollutant Discharge Elimination System. But instead of granting or denying review, the Court put the case on hold and invited the Solicitor General to file a brief expressing the views of the United States on the issue.
The Court’s decision to seek input from the Solicitor highlights the great importance of the case. The Ninth Circuit’s ruling earlier this year shook the timber industry, and must have surprised state environmental agencies and the EPA too. That’s because the EPA has never viewed forest road runoff as a point-source pollutant to be managed under the NPDES, and currently has no program in place to manage it as such. Instead, drainage of rainwater on forest roads has been customarily regulated under a nonpoint-source system of state-by-state best management practices.
PLF represented 19 timber, conservation, and education organizations from around the country in filing an amicus brief supporting review by the Supreme Court. As our brief shows, failing to overturn the Ninth Circuit’s decision could lead to onerous new federal permitting requirements for over 260 million miles of forest roads nationwide, affecting over 3 million forest land owners, most of whom are private individuals or small unincorporated entities. Considering similar permits often take more than two years to process and can cost over $200,000, this is no small problem. In fact, it is a very big problem for a lot of different people. Forest land owners could be forced to spend thousands of dollars to obtain federal permits, with negligible environmental benefit; state agencies could be displaced as the primary regulatory authorities for forest roads; and the EPA could be made to create a program to process permits for over 200 million potential rainwater discharging sources, which the agency has repeatedly said do not qualify as point sources of pollution.
We will keep tabs on this case here at the blog. In the meantime, you can find more from me on this case here.