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Congress and Supreme Court Address Forest Road Regulations

August 01, 2012
Author: Suz-Anne Kinney

The House Committee on Transportation and Infrastructure held a hearing today on H.R. 2541, the Silviculture Regulatory Consistency Act, a bill that would prevent a decision made by the Ninth Circuit Court that requires forest roads to be permitted under the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) program. This decision, if it is allowed to go into effect, would cost from $420 million to $4 billion per year in the US South (Cubbage and Abt). In the Pacific Northwest, these costs would range from $654-$883 million per year (Forest Econ, Inc); and in Maine, the costs could total between $93-$177 million annually (Sewall). All of these studies can be found here.

During the hearing, the bill was amended to clarify its intent to preserve the 35-year old silviculture rule that the EPA has used to regulate pollution from forest activities. Since 1976, the EPA has exempted “rock crushing, gravel washing, log sorting and log storage facilities operated in conjunction with silvicultural activities, activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff” from permitting, letting state best management practices (BMPs) ensure compliance with the CWA.

At the end of today’s committee meeting, the bill was reported favorably and unanimously to the full House, where it is expected to come up for vote when the House is back in session after the August 6-September 10 Congressional recess. A September vote is critical: a measure passed last December postponing the Ninth Circuit Court’s decision from going into effect will expire September 30. An identical bill (S. 1369) has been introduced into the Senate, where it sits awaiting action from the Committee on the Environment and Public Works. A search of the Committee’s website shows that no hearings on the matter have been held or scheduled.

The Ninth Circuit’s decision is also under scrutiny from the Supreme Court. In June, the Court announced that it would hear appeals in two cases that could lead to the decision being overturned. The next session of the Court begins in October, though we don’t know when these cases will make it on the docket.

Congressional action is the best hope at this point. If the full House passes H.R. 2541, the Senate might be encouraged to act swiftly, and the President—having signed the earlier measure—will likely do so again. In addition to being the best hope for resolving this issue before the September 30 deadline, legislation would, as the National Alliance of Forest Owners pointed out in its press release on this issue, “provide legal certainty.”

If you’d like to urge your legislators to take action on this issue, you can find their contact information here.

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