Stormwater Runoff from Logging Roads Requires Discharge Permit
In a precedent-setting opinion,1 the Ninth Circuit Court of Appeals has ruled that stormwater runoff from logging roads that is collected in ditches, culverts and channels and discharged to surface water requires a water quality discharge permit.2 While this case involves stormwater discharges from logging roads, the Court’s decision could affect other activities that rely on regulatory exemptions from the discharge permit requirements.
The timber industry and the EPA argued that (1) the Silvicultural Rule3 exempts logging road discharges from discharge permit requirements and (2) discharges were exempt under the 1987 amendments to the federal Clean Water Act. The Court rejected both arguments, relying on the broad definition of the term “point source” in the federal Clean Water Act, which regulates discharges from discrete or channeled conveyances. The Court also found that the lack of a specific statutory exemption for logging road stormwater runoff within the point source definition precluded exempting road runoff from permit requirements. Because the Court ruled that logging road runoff was an industrial activity regulated under the 1987 Clean Water Act Amendments, it declined to delay issuing its ruling.
The Court’s decision effectively eliminates the Silvicultural Rule for most logging road runoff, except for unchanneled “natural runoff,” which is not a “point source” discharge. This is the latest case to invalidate EPA rules exempting certain activities from permit requirements. In 2009, the D.C. Circuit invalidated the EPA rule exempting pesticide residue from permit requirements.4 In 2008. the Ninth Circuit invalidated the EPA rule exempting sewage discharges from vessels.5
The breadth of this decision is likely to affect other activities that either rely on EPA regulatory exemptions or involve activities that typically have not required discharge permits. The case is virtually certain to lead to additional litigation in this area.
If you have any questions, please contact Lori Terry Gregory (206.447.8902) or any lawyer in Foster Pepper’s Environmental Group.
1 Northwest Environmental Defense Center v. Brown, __ F.3d __, 2010 WL 3222105 (9th Cir. August 17, 2010), available at http://www.ca9.uscourts.gov/datastore/opinions/2010/08/17/07-35266.pdf
2 The water quality permit at issue in this case was a National Pollution Discharge Elimination System (NPDES) Permit, which is required for discharges of pollutants from a point source into surface waters.
3 40 C.F.R. § 122.27.
4 National Cotton Council of America v. EPA, 553 F.3d 927, 940 (6th Cir. 2009)
5 Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008).
