Until now, the Environmental Protection Agency (EPA) has acted on the assumption that National Pollution Discharge Elimination System (NPDES) permits are not required for discharges of pollutants from ditches, culverts and channels that collect stormwater runoff from logging roads. The U.S. Court of Appeals for the Ninth Circuit changed all of that on August 17. In Northwest Environmental Defense Center (NEDC) v. Brown, No. 07-35266, a three-judge panel overruled a Federal District Court's dismissal of NEDC's suit alleging that the Oregon State Forester and several private timberland owners had violated the Federal Clean Water Act (CWA).
Since 1973, the EPA has promulgated and amended a regulation specifically exempting from NPDES permitting requirements "point source" silviculture (forestry) activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is "natural runoff" (40 C.F.R. Sec. 122.27 – the Silviculture Rule). Section 502(14) of the CWA defines "point source" in part as any discernible, confined and discrete conveyance including but not limited to any pipe, ditch, channel, tunnel or conduit. Absent an exemption such as that provided by the Silviculture Rule, point source polluters are required to obtain NPDES permits.
In NEDC v. Brown the plaintiff alleged that the defendants violated the CWA by not obtaining EPA permits for stormwater runoff that flows from logging roads into systems of ditches, culverts and channels, and that is then discharged into forest streams and rivers. NEDC further alleged that timber hauling on logging roads is a major source of sediment that flows through the stormwater collection system. Logging trucks passing over the roads grind up the gravel and dirt on the surface of the road. Sand, rocks, gravel and dirt are then washed into the collection system and discharged directly into the streams and rivers.
In a detailed 41-page opinion, the Ninth Circuit panel analyzed the legislative history of the CWA and its several amendments. The court concluded that while Congress granted an exemption for agricultural point source polluters, it had never done so for silviculture. The court further reasoned that because no exemption could be implied from the legislative history and amendments to the CWA, the EPA had no authority to create the exemption contained in the Silviculture Rule.
It should be noted that the court did concede that the Silviculture Rule could be construed as consistent with the CWA so long as the "natural runoff" remains natural. That is, the exemption ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a "discernible, confined and discrete conveyance" and discharged into the waters of the United States. This two-part test may allow some logging operations to remain exempt where the "natural runoff is not discharged into streams and rivers.
Practical Issues for Loggers and Forest Owners:
- The Ninth Circuit panel decision remains subject to further appeal and there is not yet any apparent injunction associated with the decision. It is too early to determine how the EPA will react to the decision. Counsel should be advised to communicate with the EPA to keep abreast of developments in this arena.
- One scenario to anticipate after this decision is further
rulemaking by the EPA that could propose applying a general and
individual NPDES permitting scheme such as that now applicable to
stormwater discharges from construction or industrial sites or
municipal road stormwater collection and drainage systems. If a
general permit similar to that currently in place for smaller
construction and industrial sites is made available, it could
require the filing of an electronic or paper "Notice of
Intent" for road construction, maintenance, or transport
operations, together with a "Stormwater Pollution Prevention
Plan" (SWPPP) that must be prepared and implemented. Whatever
form the permitting scheme may take, it is likely to increase
operational and compliance costs for landowners and
operators.
- The ultimate scope of the impact of the decision could extend
beyond commercial logging to any roads constructed, maintained or
used for thinning, prescribed burning, or other forest management
and treatment activities, and nationwide, beyond the several
Western states within the Ninth Circuit's
jurisdiction—Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada, Oregon and Washington.
- If logging and other forest management roads and operations currently within the scope of the Silviculture Rule are placed within the NPDES permitting regime, it is possible that CWA "Total Maximum Daily Load" (TMDL) allocations in various stream drainages, "anti-degradation," and other NPDES requirements will be affected.
- Contracts between loggers and landowners should be reviewed for covenants and indemnities relating to regulatory compliance. Careful consideration should be given to impacts on compliance costs and performance timelines and milestones that will result from additional regulatory burdens and delays.
- Coordination with state regulatory authorities and the EPA will have to be modified to ensure that state and federal stormwater requirements do not conflict.
- A major yet-to-be-answered issue relates to whether existing logging roads will require NPDES permits.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.