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Logging Roads, Stormwater and the Clean water Act

By:  Gregory Bassler, Northwest Management, Inc.

On August 17, 2010, the Ninth Circuit Court of Appeals invalidated an attempt to exempt certain stormwater discharges from the National Pollution Discharge Elimination System (“NPDES”) permitting requirements by regulation. While the challenge in Northwest Environmental Defense Center (NEDC) v. Brown No. 07-35266 related specifically to storm water runoff from logging roads, the court’s opinion makes clear that runoff from industrial activities must be covered under a NPDES permit if, at any time prior to entering waters in the United States, it has been collected in man-made structures such as roadside ditches, culverts and channels. The decision could set important precedent for management of logging roads.

In NEDC v. Brown, the plaintiff alleged that the Oregon State Forester, members of the Oregon Board of Forestry and various timber companies had violated the CWA by failing to obtain an NPDES permit covering stormwater discharges from two long-existing public roads that enter Oregon’s Tillamook State Forest and are used for logging, among other things. The District Court dismissed the suit after concluding that these discharges were exempt from NPDES permitting under the EPA’s Silvicultural Rule. The Ninth Circuit found that stormwater flowing from these roads into forest streams and rivers through a system of ditches, culverts and channels was “point source” pollution and neither the Silvicultural Rule nor the 1987 amendments to the CWA exempted such discharges from the NPDES permit program.

The CWA requires NPDES permits for the discharge of any pollutant to any navigable water from any point source. The CWA distinguishes between point source discharges of pollutants and non-point source pollution. The difference between the two depends on whether the stormwater runoff was allowed to run off naturally, and thus a non-point source, or was collected, channeled and discharged through a system of ditches, culverts, channels and similar conveyances and thus a point source. Since 1973, rules promulgated by the Environmental Protection Agency (“EPA”) have distinguished between point source and non-point source pollution. Included in these rules is the so-called Silvicultural Rule, which specifically defines timber “harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff” to be “non-point source silvicultural activities” and exempt from NPDES permitting requirements.

In 1987, Congress amended the CWA and under Section 402 (p), it promulgated the EPA to establish a tiered approach to permitting stormwater discharges from point sources. Phase 1 required permits from industrial activity. The Phase 1 sources included discharges “associated with industrial activity”. Stormwater discharge from associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the NPDES program under part 122, which included the Silvicultural Rule. This exempted logging roads from Phase 1 permitting requirements as an industrial activity.

The Ninth Circuit ruled that the Silvicultural Rule cannot exclude logging road discharges from NPDES permitting. Logging road discharges are industrial stormwater discharges to EPA Phase 1 NPDES permitting. Logging road discharges fall squarely within the statutory definition of a point source.

NPDES permits must ensure that the discharge complies with water quality standards, and the permit holder must monitor and report the level of pollution as compared to permit limits. The permittee submits regular monitoring reports to EPA or state agencies and any violations are documented. Citizens can bring enforcement actions in Federal Court to enforce the terms of a permit if EPA or the state agencies allow a polluter to continue their polluting activities.

Obviously, this ruling has far reaching implications to forest landowners. Federal, State and private timber sales may be delayed or enjoined by lawsuits. Private logging roads and apparently some other roads such as county roads that are considered logging roads may be affected as well. Questions arise as to what constitutes a logging road and what distinguishes it from a road not associated with industrial activities. Who is responsible for obtaining the necessary permits? Is it the owner of the road, the entities that haul logs on the road and/or other users of the road? The EPA and the states agencies will have to address these questions and adopt rules to provide for permitting discharges from logging roads.

 A petition for en banc review has been filed. Numerous entities are coordinating their efforts to show the scope and importance of the court’s ruling. The court will either deny or grant petition for rehearing. We’ll keep you posted on any developments.

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