EPA Releases Proposed Rule to Exempt Logging Roads From NPDES Permitting

The Environmental Protection Agency has released a proposed rule designed to get around a federal court decision that required a new layer of permitting for forest roads.

EPA's proposal specifies that logging roads do not need Clean Water Act pollution discharge permits for stormwater runoff, a policy that existed for decades until upended by the U.S. Court of Appeals for the Ninth Circuit.

The court ruled in 2010 that logging roads require the permits if water runoff is channeled in any way, making the water a “point source” discharge requiring a National Pollutant Discharge Elimination System (NPDES) permit. An appeal is pending before the U.S. Supreme Court (Decker v. Northwest Environmental Defense Center, U.S., No. 11-338, cert. granted 6/25/12; 122 DEN A-8, 6/26/12).

EPA is trying to nullify the ruling through a different approach in the exercise of its regulatory authority over forest roads. The agency is proposing to specify, under authority of Clean Water Act Section 402(p), that stormwater runoff from logging roads is not a discharge “associated with industrial activity” and does not need a discharge permit.

EPA Administrator Lisa Jackson signed the proposed rule Aug. 24. It has not yet been published in the Federal Register but has been posted on the EPA website. The public will have 30 days to submit comments after formal publication.

Group Urges Delay of Rule.

The National Alliance of Forest Owners released a statement Aug. 28 asking EPA to withhold a final version of the rule until the Supreme Court rules on the matter.

“A final rule prior to a Supreme Court decision will cause legal confusion when we are seeking clarity and certainty,” NAFO President Dave Tenny said. “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.”

The forest owners, timber companies, farming and ranching interests, and many state and local governments want the Ninth Circuit decision overturned. They have defended in court the practice of allowing state regulators to oversee forest roads while requiring use of best practices in the management of water runoff.

The commercial groups and government officials have warned that if NPDES permits are required, they will open the way to much litigation, not only over the permitting system that EPA promulgates but also over individual permits. Millions of miles of forest roads could require many thousands of permits.

Congressional Action.

Congress used an omnibus spending bill in December to bar enforcement of the Ninth Circuit decision on logging roads during fiscal year 2012, which ends Sept. 30. The House Transportation and Infrastructure Committee, in an Aug. 1 vote, approved the Silviculture Regulatory Consistency Act (H.R. 2541) to exempt logging roads from NPDES permitting (148 DEN A-1, 8/2/12).

Petitioners' briefs in the Supreme Court case were due Aug. 28. The deadline for Northwest Environmental Defense Center to file its respondent brief is Oct. 16.

By Alan Kovski  

The EPA proposed rule on logging roads to avert the need for NPDES permits is available at http://op.bna.com/env.nsf/r?Open=fwhe-8xmq6k.