The U.S. Environmental Protection Agency (EPA) has published a proposed rule that would exempt logging roads from National Pollutant Discharge Elimination System (NPDES) permitting under the Clean Water Act. 77 Fed. Reg. 53,834 (9/4/12). The proposed rule seeks to clarify EPA’s position in light of the court decision in Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011), which held that logging roads do require NPDES permits if water runoff is channeled in any way. The decision is currently being appealed to the U.S. Supreme Court.
Under the proposed rule, EPA would amend its Phase I stormwater regulations to clarify that stormwater runoff from logging roads is not a discharge “associated with industrial activity” and thus does not require an NPDES permit. In particular, EPA has proposed adding language that would define, for the purposes of assessing stormwater discharges, “industrial” facilities under SIC code 2411 as only those involved in “rock crushing, gravel washing, log sorting, and log storage.”
Meanwhile, the National Alliance of Forest Owners (NAFO) has asked EPA to withhold a final rule until the Supreme Court addresses the matter. “While we agree with EPA that forest roads are not point sources, we are urging the agency to defer completing its rulemaking pending a Supreme Court decision,” said NAFO President and CEO Dave Tenny in an August 28, 2012, statement. “A final rule prior to a Supreme Court decision will cause legal confusion when we are seeking clarity and certainty. Rather than completing a rule that may not be necessary, we prefer to keep the focus on encouraging the Supreme Court to overturn the Ninth Circuit decision. We need legal certainty rather than new opportunities to take this issue back to the Ninth Circuit.”