NPDES Permits for Forest Roads
Nonpoint Source Regulatory Exemption. Since 1976, EPA regulations have interpreted the Clean Water Act (CWA) to define forest management activities such as forest roads as “nonpoint” sources that do not require NPDES permits under the CWA. The U.S. Court of Appeals for the Ninth Circuit has now ruled that EPA’s definition is contrary to the CWA and that forest roads and their associated stormwater runoff gathering systems are ”point sources” subject to the National Pollution Discharge Elimination (NPDES) permit programs. The decision means that forest landowners will have to obtain NPDES permits for some or all of their roads. EPA has shown no indication that it will defend its regulations any further. It statements to date suggest that the agency is did not support rehearing the original decision, which the court has now denied, and its statements to date suggest it is developing a nationwide response despite the ongoing judicial process. It appears that the agency is inclined to abandon its prior 35 years of enforcement and follow the decision beyond the Ninth Circuit if it becomes final.
Timeline
1976 – Silviculture Nonpoint Definition
1990 – Stormwater Industrial Activity Definition
2010 Ninth Circuit Strikes Down Definitions
Nonpoint Source Water Quality Protection. Forestry activities in the United States are conducted under the most comprehensive program of best management practices (BMPs) of any land use activity for protection of water quality. The content and use of BMPs are subject to both periodic review and continuous improvement. Studies have shown that state BMP’s are effective at controlling runoff.
Today, the greatest threat of deforestation comes from the conversion of forests to non-forest uses that produce a higher economic value. Private forests make up nearly 60% of our nation’s forests and over 10 million individuals and small businesses own nearly 60% of that total. Forest owners depend on a return from forest products to invest in sound, long-term forest management. However, increased regulatory costs reduce the ability to maintain the land as forested and at some point will tip the balance in favor of the non-forest use.
New requirements under an NPDES permit for monitoring and surveillance, planning, recordkeeping, reporting and other tasks will create significant delays, costs, reporting burdens and legal risks from citizen suits for hundreds of thousands of permit holders without enhancing environmental protections.
The Litigation. The Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester, the Oregon Board of Forestry, and four timber purchasers in NEDC v. Brown alleging that “logging” roads in the Tillamook State Forest are “point sources” requiring NPDES permits. On August 17, 2010, the U.S. Court of Appeals for the Ninth Circuit determined that forest roads and their stormwater runoff gathering systems channel stormwater into waters of the United States and are therefore point sources subject to the NPDES permit requirement. The court ruled that ditches and culverts such as used on forest road systems are within the definition of point source in the CWA, and, therefore, EPA lacked authority to designate these roads a nonpoint source in 1976. In so doing, the Ninth Circuit reversed the U.S. District Court for the District of Oregon which had upheld the EPA regulation.
The Ninth Circuit further ruled that EPA included logging and associated roads within its definition of “industrial activities” subject to Phase I of the stormwater NPDES permit program. Congress specified that Phase I activities must obtain an NPDES permit for stormwater discharges. The court ignored the fact that EPA specifically excluded silviculture activities from its final definition of “industrial activity,” as the agency explained in its amicus brief in the case. EPA argued in its amicus brief that its exclusion of forestry from the definition of “industrial activity” means that forest roads are only subject to the discretionary Phase II of the stormwater program where Congress left it up to EPA to decide what additional point sources would require permits.
The defendants requested rehearing “en banc,” arguing that the court cannot ignore EPA’s own interpretation of its stormwater regulations on the meaning of “industrial activity.” On May 17, 2011, the Court denied the request. Despite filing an amicus brief defending its regulations during the original appeal, EPA has taken no steps to defend its regulations during the rehearing process. Rather, as noted above, the agency seems to have accepted the decision and is considering ways it might be implemented. The defendants now have 90 days to ask the Supreme Court to review the decision. They may also ask the Ninth Circuit to stay its ruling while the Supreme Court review is sought.
