Environmental Groups Push for Federal Permitting for Forestry
Ellen Steen, Crowell & Moring LLP, Washington, DC
October 15, 2003

      Many forest landowners remember that the United States Environmental Protection Agency (“EPA”) proposed several years ago to change its regulations so that certain forestry operations could be regulated through Clean Water Act National Pollutant Discharge Elimination System (“NPDES”) permits. See 64 Fed. Reg. 46,058 (Aug. 23, 1999). EPA withdrew that proposal in 2000, largely in response to considerable opposition from the forestry community. See 65 Fed. Reg. 43,586 (July 13, 2000). EPA’s decision ultimately left intact its “silvicultural point source” regulation that has been on the books since 1976 defining almost all forestry activities as “nonpoint sources” that are not subject to NPDES permitting. See 40 C.F.R. § 122.27. Yet environmental groups continue to press for the regulation of forestry activities, waging their campaign largely in the courts. EPA so far has held its ground, defending the exclusion of forestry from “point source” permitting. See Interpretive Statement and Guidance Addressing Effect of Ninth Circuit Decision in League of Wilderness Defenders v. Forsgren on Application of Pesticides and Fire Retardants (EPA General Counsel Robert E. Fabricant, Sept. 3, 2003). However, several recent court rulings have substantially narrowed the protection afforded by the regulation. EPA now must aggressively defend its longstanding rule if forest land managers are to be relatively secure from the uncertainty, bureaucracy, and potential liability that would come with NPDES regulation and permitting.

Recent Litigation Seeking Regulation of Forestry-Related “Storm Water Discharges”

      The most active front now in the war over federal permitting for forestry is in the courts – in several recent or ongoing lawsuits pressing for permitting of forestry-related “storm water discharges.” A federal district court judge in California just ruled that EPA’s silviculture regulation does not define forestry activities as “nonpoint sources” if storm water runoff from those activities is channeled through conveyances such as ditches or culverts. See Environmental Protection Information Center v. Pacific Lumber Company (“EPIC”), No. C01-2821 MHP (N.D. Cal. Oct. 14, 2003). And a judge in North Carolina ruled months ago that clearing, grading or excavation – even for the purpose of forestry – amounts to “industrial activity” that must be permitted under EPA’s existing storm water regulations. See North Carolina Shellfish Growers v. Holly Ridge, 2003 U.S. Dist. LEXIS 13674, *60-61 (E.D.N.C. July 25, 2003) (motion for reconsideration pending). As a result of yet another lawsuit, the Ninth Circuit Court of Appeals recently ordered EPA to consider designating categories of forestry-related sources for regulation through storm water permits “to protect water quality.” Environmental Defense Center v. EPA, 2003 U.S. App. LEXIS 19073 (9th Cir. Sept. 15, 2003).

The Power of the Courts

      Courts considering challenges to agency regulations, or interpreting agency regulations, in theory show deference to the agency’s policy determinations and legal opinions. Ultimately, however, it is the role of the courts to interpret the laws enacted by Congress, and agencies must abide by the law. Because of this, citizens groups have often called upon the courts to invalidate agency decisions. Judges also have considerable power in “interpreting” an agency’s regulations, and the courts’ interpretation may be quite different from the agency’s original intent. One example of this is the recent California ruling in EPIC v. PALCO, in which the judge refused to interpret the silviculture regulation – as EPA itself has interpreted the rule for more than 25 years – to define activities as “nonpoint sources” where runoff is channeled through ditches, culverts, or other conveyances. Another example is the North Carolina Shellfish Growers ruling, in which the judge found that EPA’s storm water regulations (promulgated in 1990) define clearing, grading or excavation as “industrial activity” (subject to permitting) even if those activities are undertaken for the purpose of forestry. Both of these cases remain pending, and both decisions are subject to future appeals to higher courts that could reverse these incorrect interpretations of EPA’s regulations.

The Need for Vigilance

Forestry operations have been shielded from federal NPDES permitting – and from the threat of substantial monetary penalties and litigation costs in “citizen suit” litigation – by virtue of a regulation that has been on the books since 1976 and that they have fought hard to defend. But a negative court ruling can eliminate that protection virtually overnight, with no meaningful opportunity for public input. The forestry community needs EPA to be active and aggressive in the courts – and to continue to defend its longstanding silviculture regulation. Landowners and forestry organizations should let their representatives in Washington know that this litigation poses a serious and immediate threat and ask that they urge EPA to defend the “nonpoint source” status of forestry.