The American Farm Bureau Federation, National Pork Producers Council and National Council of Farmer Cooperatives have filed a friend-of-the-court brief with the Supreme Court. They believe stormwater runoff from tree harvesting and other forestry activities – like most agricultural activities – should not be subject to federal Clean Water Act permitting requirements. The groups are urging the Supreme Court to reaffirm the intent of Congress to exclude stormwater runoff from forestry activities requiring CWA permits.
The U.S. Court of Appeals for the Ninth Circuit invalidated an EPA rule relied on by forest landowners for 35 years in 2011. The lower court concluded that logging roads and associated stormwater collection systems must be viewed as “point sources” of pollution regulated under EPA’s National Pollutant Discharge Elimination System permit program. Farm Bureau, NPPC and NCFC would like the Supreme Court to reverse that decision. They argue that the lower court ruled incorrectly that logging is an industrial activity – concluding that stormwater discharges from those activities must be authorized under an NPDES stormwater permit as part of EPA’s stormwater regulations. According to the three groups – Congress confirmed in its 1987 Clean Water Act amendments that stormwater from both agriculture and forestry has always been intentionally excluded from federal permit requirements.
Farm Bureau’s General Counsel Ellen Steen says Congress has never allowed the EPA to be in the business of mandating particular forestry practices – any more than it allows the agency to regulate how crops are grown. Steen says Congress has always recognized that stormwater runoff from these activities is best left to state and local authorities. She adds that states have been very successful in designing their own programs to protect water quality.