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December 04, 2012
EPA clarifies logging exclusion

In a final rule, the EPA has clarified that stormwater discharges from certain logging roads are not industrial discharges and therefore, do not require a National Pollutant Discharge Elimination System (NPDES) permit.  The action specifically responds to an August 2010 opinion issued by the U.S. Court of Appeals for the 9th Circuit that stated exactly the opposite–that stormwater runoff from logging roads, which is collected by and then discharged from a system of ditches, culverts, and channels, is a point source discharge for which a NPDES permit is required.  The opinion effectively found that for 3 decades the EPA had been acting contrary to the intent of the Clean Water Act by not requiring such permits.

The U.S. lumber industry regarded the 9th Circuit’s opinion as a potential economic disaster and appealed to the U.S. Supreme Court.  The state of Oregon also appealed.  The high court accepted the cases (consolidated under Decker v. Northwest Environmental Defense Center, No. 11-347), entertained oral arguments on Monday, and will issue an opinion probably by spring 2013.

Industry requested that the EPA delay publication of any rule to clarify its position regarding stormwater discharges from logging roads until after the Supreme Court rules on Decker v. Northwest Environmental Defense Center since the Agency’s action may create another level of legal challenge and additional expense.  The EPA disagreed and said the final rule was necessary to remove regulatory uncertainty following the 9th Circuit’s opinion. 

Legal certainty or confusion?

In the final rule, the EPA notes that Congress directed the Agency to require NPDES permits for industrial discharges and left it to the EPA to define that term.  The EPA subsequently decided to limit NPDES permitting applicability to specific silvicultural activities, namely rock crushing, gravel washing, log sorting, and log storage.  Other activities were explicitly excluded from permitting, including “road construction and maintenance from which there is natural runoff.” 

The Agency followed its silviculture rule with stormwater rules that further associated industrial activity with immediate access roads that are used exclusively or primarily by the industrial facility.  The Agency pointed out that loggers make use of publicly accessible roads but that these roads are also available to the general public, the government, and other industries.   

Data review continues

The EPA has not closed the book on the potential for requiring NPDES permitting on public access roads when stormwater runoff from logging activities discharged into ditches, culverts, and channels.  However, the Agency continues to state that it needs to review available information on the water-quality impacts of stormwater discharges from forest logging roads as well as existing practices to control those discharges. 

In the meantime, the EPA has taken the position that best management practices rather than permitting can effectively address the complexity of forest road ownership, management, and use.  In addition, Congress has temporarily prohibited the Agency from issuing NPDES permits either directly or indirectly (through a state agency) for stormwater discharges from roads used for silvicultural activities.  Congress issued the ban for the period September 2012 to March 27, 2013. 

The final rule states that only rock crushing, gravel washing, and log sorting connected with silvicultural activities are subject to NPDES permitting and that “all other types of silvicultural facilities” are “not included.”

Click here to read the prepublication version of the clarifying rule.

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