High court rules logging road runoff not subject to Clean Water Act
By MATEUSZ PERKOWSKI
The U.S. Supreme Court has ruled that runoff from logging roads isn't subject to Clean Water Act permits, reversing a previous federal appeals court ruling.
In 2010, the 9th U.S. Circuit Court of Appeals ruled that the runoff is subject to Clean Water Act permitting rules as a "point source" of pollution if it runs through ditches and culverts.
The ruling contradicted more than three decades of U.S. Environmental Protection Agency policy and alarmed the timber industry, which feared costly new permits and a barrage of environmental lawsuits.
The nation's highest court has overturned the 9th Circuit's decision, finding that the EPA was reasonable in excluding logging road runoff from Clean Water Act permits.
The agency was within its authority in finding that Clean Water Act permits only apply to manufacturing, processing and storage in fixed locations, not to the harvest of raw materials from different areas, according to the Supreme Court's ruling.
"Taken together, the regulation's references to 'facilities,' 'establishments,' 'manufacturing,' 'processing,' and an 'industrial plant' leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities," the ruling said.
Congress has instructed the EPA to coordinate with state and local regulators to reduce water pollution, so it makes sense for the agency to avoid enforcement that's "duplicative or counterproductive," the ruling said.
"The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads," the ruling said.
The opinion was written by Associate Justice Anthony Kennedy and joined by six other justices. Associate Justice Stephen Breyer, whose brother joined in the 9th Circuit decision, took no part in the case.
Associate Justice Antonin Scalia concurred with the ruling on jurisdictional issues but disagreed on the substantive issue of Clean Water Act permits for logging road runoff.
Scalia wrote a dissenting opinion in which he said that logging road runoff is associated with artificial conveyances and was subject to the Clean Water Act rules.
"The fairest reading of the statute and regulations is that these discharges were from point sources, and were associated with industrial activity," he said.
While the Supreme Court's majority opinion is considered a victory for the forest owners and the timber industry, they don't expect the decision to end the controversy.
"We've won an important round in an ongoing fight," said Dave Tenny, president and CEO of the National Alliance of Forest Owners.
Shortly before the Supreme Court held oral arguments in the case last December, the EPA issued a new regulation that logging road runoff isn't associated with industrial activity.
The change was intended to prevent the need for Clean Water Act permits and render the lawsuit before the Supreme Court moot.
The Supreme Court has disagreed that the new rule rendered moot the case, and an environmental group has already appealed the regulatory change.
"The 9th Circuit will get another bite at the apple on this," said Tenny.
Hopefully, the Supreme Court's decision has resolved that excluding logging road runoff from permitting rules doesn't violate the Clean Water Act, said Chip Murray, general counsel for NAFO.
"The Supreme Court said that EPA has authority to define what is and is not an industrial activity," said Murray, noting that environmentalists can still challenge the regulation under administrative law.
Scott Horngren, attorney for the American Forest Resource Council, said the situation would now have been much clearer if the EPA hadn't made the last-minute change to regulatory language.
Any difference between the new regulation and the old one creates a crack that the environmentalists will try to "drive a lawsuit through," said Horngren.
However, it is heartening the Supreme Court highlighted the importance of EPA not interfering with Oregon's best management practices for the timber industry, said Murray.
"I think it's significant the court has recognized that's a proper policy," he said.