David P. Tenny, President and CEO of the National Alliance of Forest Owners (NAFO), released the following statement after the U.S. Supreme Court issued an order asking the Solicitor General for the views of the federal government on two petitions challenging the Ninth Circuit Court of Appeals’ ruling that forest roads are “point sources” requiring an industrial discharge permit under the Clean Water Act (CWA):
“We applaud the Supreme Court for scrutinizing the Ninth Circuit’s decision to disregard EPA’s 35 years of success regulating forest management as a nonpoint source under Clean Water Act. The Court is hearing not only the voice of forest owners and managers across the country but also Attorneys General from 26 states who joined a brief supporting EPA’s historic approach. The policy and legal importance of this case is clear.
For nearly four decades, the EPA has cooperated with the states under established Clean Water Act authority to build a network of Best Management Practices providing flexible and effective water quality protection during forestry operations. This has been a Clean Water Act success story. The Ninth Circuit’s decision threatens to upend this progress by replacing an efficient and flexible system that promotes clean water with a costly and inflexible permit requirement that invites additional litigation. In the end the Ninth Circuit’s decision hurts forest owners and forests alike.
“While this is a significant first step, there is no guarantee that the Supreme Court will hear the case and reverse the Ninth Circuit Court’s overstep. It does, however, provide the Administration and the Solicitor General an opportunity to submit to the Supreme Court a clear and unambiguous defense of EPA’s longstanding and legally appropriate approach to regulating forest roads as nonpoint sources.”