Stormwater Discharges From Logging Roads

The EPA has announced that it intends to revise its stormwater regulations to specify that a National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater discharge from logging roads. The EPA’s action is the result of the Ninth Circuit’s decision in Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011), for which a petition for certiorari is pending in the United States Supreme Court.

In the 1980s, Congress amended the Clean Water Act to provide a special regulatory regime for stormwater discharges. That regime did not, however, attempt to regulate all stormwater discharges. For example, if the stormwater discharge were not “associated with industrial activity,” the Clean Water Act would not apply.

In Brown, the Ninth Circuit overturned EPA’s stormwater permit exemption for logging roads, holding that a forest logging road constitutes a point source under the Act since the roads are related to the industrial activity of logging. The EPA’s proposed regulatory amendments would get around Brown by declaring that stormwater runoff from logging roads is not “associated with industrial activity,” and therefore does not fall within the Clean Water Act’s scope, notwithstanding that logging roads are point sources.

The EPA stated that it is aware that a congressional moratorium on NPDES permitting of some logging roads is set to expire on September 30, 2012, and that it intends to move expeditiously to complete this regulatory revision.

The EPA is also requesting comment on potential approaches for addressing stormwater discharges from forest roads and seeks input on examples of successful state, tribal and certification-oriented programs that are based on best management practices.

Comments on the EPA’s notice of intent to commence rulemaking are due by June 22, 2012.

This post was authored by GLLF staff attorney Emily Kelchen.