The Supreme Court has reversed a U.S. Court of Appeals Ninth Circuit Court decision requiring loggers to obtain stormwater discharge permits for forest roads used during timber harvests. The Circuit Court had previously ruled the use of commercial logging roads qualified as an industrial activity for which a permit was required under the Clean Water Act.
Last December, the Supreme Court intended to hear arguments about the validity of the Circuit Court ruling. When the Environmental Protection Agency issued a rule stating logging roads were exempt from such regulation just one business day prior to the scheduled arguments, the Supreme Court was instead faced with determining if any portion of the case was left for it to decide.
In its decision, the Supreme Court noted rendering the case moot in light of the EPA rule was not appropriate. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” The Supreme Court instead took the position that “a live controversy continues to exist regarding whether petitioners may be held liable for unlawful discharges under the earlier version of the Industrial Stormwater Rule.”
The Industrial Stormwater Rule defines industrial activity discharges as those “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” This classification supports the EPA’s position that temporary, outdoor logging installations are directly related to harvesting as opposed to manufacturing, processing or raw materials storage areas.
The Supreme Court also noted the EPA has consistently maintained logging roads are not subject to the same requirements as industrial facilities. In fact, the EPA has held this position for well over thirty years. As such, the Court observed neither an indication of change from a previously held stance nor a response to litigation when the EPA issued its new rule.
Additionally, best practices with respect to stormwater runoff from logging roads that are both implemented and regulated at the state level played a role in the decision. The Court made particular note of the “extensive” and “comprehensive” practices the state of Oregon uses to manage such runoff. On past occasions, Congress had instructed the EPA to collaborate with state officials to develop such best management practices.
Though the Supreme Court’s decision is good news for forest owners, it is unlikely this is the last they will hear of the matter. Prior to the decision, National Alliance of Forest Owners (NAFO) President and CEO Dave Tenny shared concerns (read more here at Forest2Market blog) that litigators would persist in their quest to require permits regardless of the Court’s decision. Legislation aimed to clarify, once and for all, that forest roads are not point sources of pollution appears the only practical way stop an ongoing cycle of litigation.