By DANIEL A. HIMEBAUGH
For the Capital Press
The U.S. Supreme Court recently handed down a victory for forest land owners by rejecting an environmental group's effort to bring logging road runoff under a federal permitting program. The court ruled 7-1 in Decker v. Northwest Environmental Defense Center that logging road runoff is not stormwater "associated with industrial activity," and therefore does not require a National Pollution Discharge Elimination System permit. In other words, millions of property owners dodged a regulatory bullet.
In 2011, the 9th U.S. Circuit Court of Appeals ruled that channeled stormwater running off logging roads must be regulated as "industrial" pollution. This kind of regulation would have created several problems. Property owners would have faced staggering costs, possibly hundreds of thousands of dollars, to obtain stormwater permits for logging roads. Moreover, the Environment Protection Agency does not have a logging road stormwater permit program in place. It could have taken years before the required permits would have been available, meaning road owners and operators would be required to get a permit that does not exist while the agency struggled to put a program together. Owners would have then faced a difficult choice -- continue with business as usual and risk becoming a defendant in an environmental lawsuit, or stop using the roads.
Fortunately, the Supreme Court's Decker opinion recognizes that putting an additional layer of regulation on logging road stormwater is unnecessary.
As the court noted, the states have primary responsibility for regulating runoff on forest roads. In Oregon, where the Decker case originated, state policies already require filtration of stormwater, and road construction techniques that minimize the possibility that sediment will enter streams and rivers. The court saw this and decided more federal regulation in an area dominated by state expertise would have been "duplicative or counterproductive."
Even the EPA believes that expanding the NPDES to cover stormwater on logging roads is wrongheaded. The nation's chief environmental agency recently amended its stormwater regulations to clarify that stormwater runoff on logging roads should not be made subject to NPDES permitting.
The positive impact of the Decker decision is widespread. In a friend-of-the-court brief, Pacific Legal Foundation estimated that putting logging road stormwater under the NPDES would have meant that at least 5 million land owners would need NPDES permits for their roads. Sure, some big companies could manage to comply, and then pass the cost on to consumers. But many small businesses and family-owned timber harvesters would have had to close up shop.
Environmental activists are already vowing to continue their crusade against natural resource development in America's forests. No doubt they will keep pushing, but the Supreme Court's Decker opinion will stand in their way for now.
Daniel A. Himebaugh is an attorney with Pacific Legal Foundation in Bellevue, Wash. He represented over a dozen timber industry, conservation, and educational organizations in filing a friend-of-the-court brief urging the U.S. Supreme Court to reverse the 9th Circuit's decision in the Decker case.