On May 23, the U.S. Environmental Protection Agency published a Notice of Intended Rulemaking to revise its current stormwater regulations “to specify that an NPDES permit is not required for stormwater discharges from logging roads” and setting forth the defining point that “logging roads are not stormwater discharges ‘associated with industrial activity.’” Good to have that on record; the following day, however, the White House’s Solicitor General submitted a brief to the Supreme Court, urging it not to accept for review the 9th Circuit Court’s decision that such permits could be required.
The contrary implication of these two opinions may be reconciled in the assumption that the Administration would prefer to keep control over the issue—or even negotiate a solution with congress—rather than risk that, in the course of its review of the 9th Circuit Case, the Supreme Court might impose new limits on EPA’s regulatory authority.
Since the Court is in possession of the Administration’s stated position that forest road permitting is not necessary—and other responding briefs (from our side) will hammer on that point—we may presume that the Court may discount the frankness of the Administration’s request to some extent in reaching its decision to review the case—expected by June 26. Observers with experience in handicapping the Supreme Court’s moves put the chances of the Court’s accepting the case for review at about 50/50 at this point.
The National Alliance of Forest Owners points out that, regardless of one’s evaluation of EPA’s intent, a regulatory solution would not put a lid on the question of permits for forest roads: “We need legal certainty to make it stick. We know litigators lie in wait to bring anything EPA does back to the 9th Circuit as quickly as possible.” For now, Congress has prevented EPA from implementing the 9th Circuit decision until September 30, 2012. If the Supreme Court accepts the case for review, NAFO and its allies will seek to extend this moratorium for another year, until the Court is able to render a decision. If the Supreme Court does not accept the case, we will seek congressional action to extend it permanently.
Meanwhile, FRA will cooperate with NAFO in participating in the public comment process for EPA’s Notice of Proposed Rulemaking.