Reacting to Northwest Environmental Defense Center v. Brown, 640 F.3d 1063, 72 ERC 1897 (9th Cir. 2011), the U.S. Environmental Protection Agency (EPA) has issued a rule declaring that logging roads do not require stormwater discharge permits under the Clean Water Act (CWA). 77 Fed. Reg. 72,970 (12/7/12).

Amendments to the CWA in 1987 required national pollutant discharge elimination system (NPDES) permits for discharges of stormwater from “industrial activities.” EPA has long taken the position that many farming and silvicultural activities are not “industrial” and has not required permits for those activities. Under its prior rules and interpretations, EPA required stormwater permits only for “immediate access roads” associated with a few specific silvicultural activities, such as “rock crushing, gravel washing, log sorting, and log storage.” The Ninth Circuit, however, declared that logging roads constitute industrial activity, which means that NPDES permits would be required for stormwater runoff from such roads.

Saying “Congress did not define industrial discharges, allowing the EPA to define the term,” EPA’s new regulation “clarifies, contrary to the Ninth Circuit’s decision in NEDC, that discharges of stormwater from silviculture facilities other than the four specifically named silviculture facilities identified above do not require an NPDES permit.” The new rule was issued just days before oral arguments in the U.S. Supreme Court involving earlier Ninth Circuit decisions that reached the same conclusion on logging roads. Some commenters on the draft rule suggested that EPA should delay finalizing it while the appeals are pending. Others have suggested that issuance of the new rule simply creates a new avenue to challenge EPA’s determination, if the U.S. Supreme Court upholds EPA’s prior regulations and interpretations.