Canada | USA
Forest Roads: EPA to Propose Regulatory Measure
As the 9th Circuit Court’s unfavorable decision on requiring non-point source permitting on forest roads made its way to possible Supreme Court consideration, or legislative remedy, on April 25 it was reported that the U.S. Environmental Protection Agency had sent “a draft notice of intent to address discharges from forest roads” to the White House Office of Management and Budget for interagency review.
Although an e-mailed statement from EPA that Bloomberg BNA’s Daily Environmental Report picked up suggested that the Agency has accepted the points that our side has put forward and “is considering flexible options including non-permitting options that recognize the vastness, diversity, and complexity of the nation’s logging roads networks and existing effective federal, state, local, and tribal best management practice frameworks,” our inference is that what is foremost on EPA’s mind is to head off the Supreme Court’s accepting the case and to substitute a regulatory process for a more stable legislated framework.
Even if the quoted text represents EPA’s current position—which none should take for granted—the forest-dependent community has recognized that a regulatory solution to the exposure the 9th Circuit has opened would not settle the matter, since it would still be open to legal challenge. It appears that EPA’s goal is for its notice of proposed rulemaking to appear in the Federal Register by mid-May and to refer to this process in whatever recommendation the White House Solicitor General makes to the Supreme Court (by that date) with its recommendation on whether to hear the appeal.
FRA continues to participate in the coalition fighting this battle, which the National Alliance of Forest Owners (NAFO) established and leads. We’re expecting the Supreme Court to reach a decision on whether to accept the case sometime in June. If it does accept the case, it would hear the case either this fall or next spring.