By Thomas Griffin, Summer Associate and Elizabeth Howard, Natural Resources Industry Group Leader

Next month, the EPA will issue notice in the Federal Register declining to further regulate discharges from forest roads. The notice continues more than a decade of uncertainty for forest road runoff.

Environmental groups first filed suit against the EPA in 2003, seeking to challenge the EPA’s 1999 stormwater regulations for failing to address forest road runoff. Runoff from forest roads has traditionally been regulated under state Best Management Practices (BMP) programs, such as the Oregon and Washington Forest Practices Acts. Using Section 402 of the Clean Water Act (CWA), environmental groups sought to have forest roads regulated as point sources, similar to a pipe leaving a factory. The litigation ended up in the Ninth Circuit, which eventually ordered the EPA to evaluate the suitability of requiring permits under the National Pollutant Discharge Elimination System (NPDES).

The uncertainty regarding regulation continued for several years as the EPA was under court ordered deadlines to evaluate the suitability of requiring NPDES permits. A lawsuit similar to the 2003 case made its way to the Supreme Court in 2013. In Decker v. Northwest Environmental Defense Center, the Supreme Court ruled that the EPA was not required to regulate forest roads under the NPDES. While this was a positive outcome for the forest products industry, the ruling left the door open to whether the EPA could use its discretion under the CWA to require NPDES permits for forest road runoff.

To provide more certainty, members of Congress worked with the forest products industry to develop a legislative fix. Specifically, the Silviculture Regulatory Consistency Act explicitly exempted silvicultural activities, including road use, construction, and maintenance, from regulation under the NPDES. The bill further clarified that silvicultural activities are not subject to citizen lawsuits under the CWA.

The stand-alone bill was passed by the House of Representatives several times, but it failed to gain any traction in the Senate, despite strong bipartisan support from members of the Oregon and Washington congressional delegations. Fortunately, because of the persistence of those congressional leaders, the bill was eventually included in the 2014 Farm Bill, which was signed into law on February 7, 2014.

Additional litigation in 2015 required the EPA to consider if forest roads were suitable for regulation under municipal and industrial stormwater discharge programs in Section 402 of the Clean Water Act. The pre-publication notice issued this week addresses this question in the negative, again citing existing state BMP programs as the most appropriate way to regulate forest road runoff. The final version of the notice will be published in the Federal Register in early July 2016. While environmental groups may choose to continue litigation, the EPA’s latest proposal is a clear sign that the EPA intends, at least for now, to maintain existing regulation of forest roads under state BMP programs.