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Despite New EPA Rule, Waters Still Murky in Forest Road Discharge Lawsuit

December 3, 2012

Earlier today, the Supreme Court heard oral argument on whether ditches, culverts and channels associated with active logging roads should be considered point sources regulated under the Clean Water Act. The Ninth Circuit held, in Decker v. Northwest Environmental Defense Center, that these conveyances do constitute point sources as discussed in an earlier post on this site. You can also read more about this matter in yesterday’s article in the Oregonian.

In an effort to address this issue before it reached the Supreme Court, just Friday, the Environmental Protection Agency (EPA) amended its prior rule to clarify that water coming off a logging road should be treated as non-point discharge in the same manner as agricultural runoff. This rule addresses the issues raised by NEDC’s original case.  However, during today’s oral argument, Petitioners urged the Court to reach a decision on the matter anticipating environmental groups are likely to petition for review of EPA’s new rule as being in conflict with the Clean Water Act.

The Supreme Court voiced frustration with amicus curiae, the United States, for failing to notify the Court of the imminence of the amended rule. The Supreme Court could have rescheduled oral argument to allow the parties more time to present their positions on whether this issue should be heard in light of the new rule or remanded to the Ninth Circuit.

Questions remain whether the lower decision will be vacated, and if not, whether the environmental groups would be considered prevailing parties entitled to attorney’s fees. Also remaining is the question whether the activity was lawful prior to the rule amendment, and if not, whether Petitioners are subject to civil penalties for violating the law. In addition, counsel for NEDC suggested that they plan to challenge the amended rule on the grounds that it is arbitrary and capricious. During oral argument, NEDC identified inconsistencies it sees within EPA’s amended rule and questioned why stormwater discharge associated with forestry would not be regulated while stormwater associated with construction, which includes building roads and removing trees, is regulated. Given these ongoing conflicts, it appears this issue will not soon be resolved.

If you have any questions, please contact me at KMoore@dunncarney.com.

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