NPDES Permit Required for Western States' Logging Roads
A recent Ninth Circuit Court of Appeals ruling lifted a long-standing interpretation that exempted logging roads from stormwater permitting requirements. The effect of the Court’s decision is that National Pollution Discharge Elimination System (NPDES) permit coverage is now required under the Clean Water Act for discharges from logging road stormwater collection systems into adjacent jurisdictional water bodies. Stormwater runoff from logging roads historically has been interpreted as a non-point source discharge, exempt from the NPDES permitting process under the U.S. Environmental Protection Agency (EPA) “Silvicultural Rule.”
The Ninth Circuit decision reversed that decades-old interpretation, concluding that “stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required.” The Ninth Circuit decision further classified logging as an “industrial activity,” which likely will make it difficult for EPA to grant future permitting exemptions.
The case, Northwest Environmental Defense Center [NEDC] v. Brown, was based on two logging roads in Oregon’s Tillamook State Forest that are owned by the Oregon Department of Forestry and the Oregon Board of Forestry. The roads are used by various logging companies to access timber areas and haul logs under contract to the State of Oregon. The NEDC brought a suit under the Clean Water Act alleging that sediment discharges in stormwater from these roads negatively impact aquatic life such as salmon and trout and require permits under the NPDES program. The District Court of Oregon dismissed NEDC’s claim, citing exemption under the Silvicultural Rule. The Ninth Circuit overturned the District Court ruling on appeal. The states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington are included in the Ninth Circuit Court of Appeals’ jurisdictional area.
The Ninth Circuit Court stated that although EPA has not had occasion to establish a permitting process for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads, “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously.” However, given both the number of roads that may now require NPDES permitting and the varying climatic conditions and settings, the Court’s confidence regarding implementation of a new permitting program may be unrealistically optimistic.
Although an appeal to the decision has not yet been filed, a petition for a full-panel review before the Ninth Circuit Court is likely. In the interim, the net effect of the ruling is to require private or public entities that own or operate on logging roads equipped with a stormwater conveyance system to apply for stormwater permit coverage from jurisdictional agencies or face the threat of enforcement or citizen action lawsuits under the Clean Water Act.