Join Us at the 2012 National Conference of Private Forest Landowners Tomorrow

I'm part of a panel discussion tomorrow at the 2012 National Conference of Private Forest Landowners, organized by the Forest Landowners Association. The panel will discuss the important legal issues facing the private forest landowner today. Others on the panel are Scott Jones, CEO of the Forest Landowners Association, and Stephen Schrock, a partner at Morris, Manning & Martin who specializes in transactional law related to timberlands. We hope to field more questions than just lecture. We've even promised not to bring powerpoints to keep things less stuffy!

My part in the panel discussion will focus on the litigation that forest landowners need to know about. We'll talk about the U.S. Supreme Court's recent Sackett v. EPA decision, as well as the forest roads permitting controversy, including the potential effects of EPA's recent regulatory notice and the Solicitor General's recent brief to the U.S. Supreme Court.

If you'll be in the Jacksonville area, it's not too late to register. Hope to see you there!

Forest Roads Update: EPA Plans Logging Road Exemption; Solicitor General Recommends Supreme Court Deny Review

As my readers know, the U.S. Supreme Court is expected to announce by the end of the summer whether it will review a decision by the U.S. Court of Appeals for the Ninth Circuit. Nw. Envtl. Defense Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). The Ninth Circuit struck down EPA's Silvicultural Rule, finding that forest roads were point sources subject to Clean Water Act permits, contrary to 35 years of EPA interpretation otherwise. Decker v. Nw. Entl. Defense Ctr., U.S. No. 11-338; Ga.-Pac. W. Inc. v. Nw. Entl. Defense Ctr., U.S. No. 11-347. The Court recently asked the U.S. Solicitor General whether it should review the Ninth Circuit’s decision.

The Solicitor General recommended against review. The Solicitor General believed the Ninth Circuit erred in not deferring to EPA’s longstanding interpretations of the Clean Water Act and its own Silvicultural Rule. Even so, the Solicitor General recommended against review because of steps taken by both Congress and EPA to address the practical effects of the Ninth Circuit’s decision.

Just before the Solicitor General filed its brief, EPA published a Notice of Intent to "Revise Stormwater Regulations To Specify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads and To Seek Comment on Approaches for Addressing Water Quality Impacts From Forest Road Discharges." In the notice, EPA stated that it will “consider a range of regulatory and non-regulatory approaches and determine which forest road discharges (if any) should be regulated under 402(p)(6)” of the Clean Water Act. Discharges from logging roads, however—a subset of forest roads—will not be considered discharges “associated with industrial activity” under section 402(p) of the Clean Water Act requiring a NPDES permit. EPA’s stated "the effect of this revision would be to remove any obligation for an owner or operator of a logging road that has discharges of stormwater to waters of the United States to seek coverage of the discharge under the Stormwater Multisector General Permit and to comply with that General Permit or to have an individual permit under section 402 of the Clean Water Act for such a discharge." Thus, the notice only addresses the permitting of logging roads, not the entire category of forest roads.

While recognizing that Congress has stayed NPDES permitting for forest roads until October 1, 2012, EPA stated it would move forward expeditiously with studying further the water quality impacts of forest roads, the category broader than logging roads. EPA will also hold listening sessions with the public this summer. In the notice, EPA has specifically asked for comments on how to best regulate forest road stormwater discharges. The agency is especially interested in the successes and failures of current best management practice programs across the country. EPA will take public comments on its proposal until June 22, 2012.

Overall, the forest products industry is seeing this as a positive devleopment. Dave Tenny, president and chief executive officer of the National Alliance of Forest Owners, has said "the EPA regulatory announcement is a sign that “we're all in agreement on what the policy outcome ought to be." In the short term, the sticking point seems to be whether getting to that policy outcome is through judicial, executive, or legislative action, or some combination of the three.

This issue is extremely important to forest landowners because of the potential costs involved. The EPA's notice leaves open the possibility of future regulation of these roads. One study I've seen indicates that if the EPA were to require permits in the future, compliance costs in the Southeast would be at least $2.08 per acre per year for larger landowners and at least $3.13 for smaller landowners. Another potential cost to landowners under any regulatory regime will be the threat of citizen lawsuits alleging noncompliance with the Clean Water Act. EPA's regulatory direction will have a huge impact on how high both of these costs go.

Permit Extension and Streamlining Bill Signed into Law

Landowners will be interested to hear that on May 4, Governor Scott signed HB 503. The bill extends some environmental permits and development orders and streamlines some environmental permitting procedures. The permitting extension applies to any "any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014." Eligible permit holders may notify the permitting agency that they intend to take advantage of the bill's two-year extension. The extension generally operates in addition to the legislative permit extensions from recent years, such as the similar measures passed in 2009, 2010, and 2011.

HB 503 has also been a topic of discussion this session because it streamlines some environmental permits. The summary from the staff analysis of HB 503 lists the most important changes:

• Prohibiting a local government from conditioning the approval for a development permit, after July 1, 2012, on an applicant obtaining a permit or approval from any other state or federal agency.
• Providing conditions under which the DEP is authorized to issue permits in advance of the issuance of incidental take authorizations as provided under the Endangered Species Act.
• Expanding the use of internet-based self-certification services for certain exemptions and general permits.
• Exempting injection wells under the State Underground Injection Control Program from permitting under part III of chapter 373, F.S.
• Requiring action on certain permit applications within 60 days of receipt of last timely requested material; precluding state agencies from delaying action because of pending approval from other local, state, or federal agencies. 
• Providing for the DEP to obtain an expanded state programmatic general permit from the federal government for certain activities in waters of the U.S. governed by the Clean Water Act and Rivers and Harbors Act.
• Revising the voluntary site cleanup program by raising the priority ranking score from 10 points or less to 29 points or less, and excluding expenditures associated with program deductibles, copayments, and limited contamination assessment reports from state restoration funds available for low scored site initiatives. 
• Providing that the transfer of title for a petroleum contaminated site to a child of the owner or a corporate entity created by the owner to hold title for the site does not disqualify the site from financial assistance.
• Providing expedited permitting for any inland multimodal facility receiving and/or sending cargo to and/or from Florida ports.
• Authorizing certain zones of discharges to groundwater for existing installations.
• Providing that sludge from a waste treatment works is not a solid waste.
• Allowing byproduct from the creation of renewable energy that is recycled to count towards the state recycling goal.
• Exempting new solid waste disposal areas at an already permitted facility from having to be specifically authorized in a permit if monitored by an existing or modified groundwater monitoring plan; extending the duration of permits issued to solid waste management facilities that are designed with a leachate control system and those without a leachate control system if certain conditions are met.
• Providing a general permit for a stormwater management system under 10 acres may be authorized without agency action.
• Expanding the definition of blended gasoline, defines the term ‗alternative fuel‘, and authorizes the sale of unblended fuels for certain uses.
• Extending certain ERP and development permits for 2 years after its previously scheduled date of expiration.

HB 503 will take effect July 1, 2012.

EPA Moves Toward Regulation of Forest & Silviculture Road Runoff

In a move that will interest forest landowners, the Environmental Protection Agency is working toward regulation of forest and silviculture runoff. Congress has stayed NPDES permitting for forest roads until October 1, 2012 through its Omnibus Appropriations Bill. Even so, Bloomberg is reporting that EPA has written a draft notice of intent to regulate discharges from forest roads if the roads collect stormwater in ditches, culverts, or other measures to channel runoff. The article is not yet available for free online.

EPA sent the notice to the White House Office of Management and Budget for review, but it has not yet made it public. EPA stated that it "is considering flexible options including non-permitting options that recognize the vastness, diversity, and complexity of the nation's logging road network and existing effective federal, state, local, and tribal best management practice frameworks." This is good news, since some have argued that the Ninth Circuit's ruling could actually lead to worse water quality. Ultimately, EPA will need to seek public comments on any rule it develops under the Clean Water Act to regulate forest and silviculture runoff under the NPDES permitting program.

EPA's action is a result of an August 2010 decision by the Ninth Circuit that struck down EPA's so-called Silvicultural Rule. The Ninth Circuit issued another opinion reaffirming that decision in May 2011. Look for my upcoming article explaining the history of this dispute and Ninth Circuit's opinion soon.

Edit May 2, 2012: Although the U.S. Supreme Court usually reviews cases after it asks the Solicitor General to brief them, one news source reports that the Solicitor General will urge the Supreme Court not to take the petition.