Logging Roads and the Clean Water Act
It doesn’t really matter what your political party affiliation is: There are times when you hear about a Supreme Court ruling, and you are left scratching your head. Whether it’s because you believed an issue was so cut and dry it is hard to imagine anyone else coming out the other way or you thought the Court could have gone a lot further in its decision than it actually did, it is not an unusual moment to find yourself perplexed by a decision of the Court.
Unlike most of us, however, the U.S. Congress is actually in a position to right a wrong that it may see in a decision — for example, the Lily Ledbetter Fair Pay Act, passed specifically to counteract the Supreme Court’s decision in Lily Ledbetter v. Goodyear. Likewise, even if the Court resolves an issue in a way that many find acceptable, Congress may pass legislation to shore up that decision or fill in any remaining holes.
Such was the case last week. On Thursday, a bipartisan group of legislators introduced a bill to reinforce and expand the recent Supreme Court decision in Decker v. Northwest Environmental Defense Center. In its decision, the Court held (lawyer parlance for determined) that the Environmental Protection Agency (EPA) acted lawfully in not requiring foresters to have permits for stormwater runoff from logging roads and other logging activities, which might otherwise require a permit under the Clean Water Act. The Clean Water Act itself is a behemoth of a statute, stating that many types of stormwater runoff from specific, identified sources, such as construction runoff into streams or wetlands, require a permit if the runoff flows into other bodies of water.
When the Supreme Court issued its Decker decision in March, it agreed with the EPA’s position that logging is not an “industrial activity” and, thus, did not require a stormwater permit for logging roads. Some in the logging industry and legislators from timber-heavy states, such as Senator Ron Wyden (D-OR), felt that the Court’s decision still left too many questions about the extent of the logging road and activities exemption from Clean Water Act permitting. These concerns arose because while the Court addressed whether logging roads and activities needed discharge permits, it did not decide whether those same roads or activities qualified as “point sources” under the Clean Water Act. Concerned legislators, therefore, took the matter into their own hands and introduced S.971, the Silviculture Regulatory Consistency Act, to clear up any remaining questions.
The act, introduced by Senator Wyden and co-sponsored by Senators Crapo (R-ID), Baucus (D-MT) and Risch (R-ID), specifically identifies forestry activities, which includes timber harvesting, as nonpoint sources under the Clean Water Act and thus exempt from the stormwater permit requirement. While logging organizations and forestry groups praise the recent legislation, when Senator Wyden introduced a similar bill two years ago, Oregon environmental groups expressed their displeasure with the proposed legislation.
Last week, S.971 was read into the Congressional Record (another interesting resource that provides access to our federal government) and then was referred to the Environmental and Public Works Committee, the same committee that has been enmeshed in a political struggle over the nomination of Gina McCarthy to be the next EPA Administrator. I will continue to track this legislation, as it is an interesting example of the power of the Congress to alter or support decisions of the Supreme Court.