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Wednesday, September 19, 2012

The Supreme Court Agrees to Decide Whether Logging Road Runoff, When Channeled, Requires a Clean Water Act Permit

Robert Meltz
Legislative Attorney

Claudia Copeland
Specialist in Resources and Environmental Policy

U.S. forests are crisscrossed by thousands of miles of logging roads. When it rains or snow melts, runoff from these roads can be environmentally harmful, so how to address this runoff under the Clean Water Act (CWA) has long been an issue. On June 25, 2012, in Decker v. Northwest Environmental Defense Center, the Supreme Court agreed to review a Ninth Circuit decision on one aspect of this issue. The Ninth Circuit held that where such runoff is collected in ditches, culverts, or other channels before being discharged into waters covered by the CWA, the discharge, being from a “point source,” requires a permit under the act. Until this decision, logging road runoff had been viewed as nonpoint source pollution, subject only to a requirement of best management practices.

Discharges from point sources into federal jurisdictional waters generally require a CWA permit. The Ninth Circuit rejected EPA’s view that its 1976 Silvicultural Rule means that logging road runoff is not a silvicultural point source even when channeled. Further, the court viewed EPA regulations implementing the 1987 stormwater amendments to the CWA as a separate ground for requiring discharge permits.

In the Supreme Court, petitioners—Oregon state officials and timber companies—argue that the decision displaces the longstanding regulatory scheme based on the view that stormwater runoff from logging roads is nonpoint source pollution. In an amicus brief, the United States asserted, to no avail, that the case did not warrant Supreme Court review because Congress and EPA have already taken steps to address concerns that requiring permits would impose unacceptable burdens on timber companies and regulators (see below).

Silvicultural activities are a known cause of water quality impairment in U.S. waters, with impacts such as increasing loading of sediment and chemical pollution. According to EPA, these impacts can result from improperly designed or maintained forest roads, but where they occur, the majority may be attributed to a relatively small subset of forest roads.

The challenge for EPA, should the Supreme Court affirm the Ninth Circuit, will be to develop a mechanism to manage the very large number of logging roads that could become subject to permitting—potentially hundreds of thousands, or even millions, according to timber industry amici. After the Ninth Circuit decision, it was initially presumed that EPA would develop a general permit system. This has been the agency’s practice for more than two decades as new categories of dischargers have become subject to CWA permitting, because of statutory or regulatory modification or judicial decisions. Proponents note that general permits allow the permitting authority to provide timely permit coverage and to allocate resources efficiently.

Despite these initial expectations, EPA is not developing a general permit in this instance. Instead, EPA is proposing to focus on those forest roads with stormwater discharges that cause or contribute to water quality impairment. EPA intends to quickly revise its rules to nullify the Ninth Circuit ruling by specifying that stormwater discharges from logging roads are not subject to current stormwater rules. The agency then will consider regulatory and non-regulatory approaches and determine which forest road discharges, if any, should be regulated. Congressional interest in the Ninth Circuit ruling has been strong, as well. Congress enacted a measure that bars EPA until September 30 from requiring a permit for stormwater runoff associated with silvicultural activities, and bills that would provide a permanent exemption have been introduced (H.R. 2541 and S. 1369).

Date of Report: September 6, 2012
Number of Pages: 14
Order Number: R42587
Price: $29.95

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