Key Provision: EPA plans to specify that stormwater runoff from logging roads needs no Clean Water Act NPDES permit.
What's Next: Administration brief is due at Supreme Court on May 25, to appeal logging roads case.
By Alan Kovski
The Environmental Protection Agency will issue a rule to specify that logging roads do not need discharge permits for stormwater runoff from logging roads, according to a notice released May 21.
The rule is intended to protect the status quo on logging roads--on both public and private land--by specifying that they should be operated under best management practices, often developed by states, rather than regulated with National Pollutant Discharge Elimination System (NPDES) permits under Section 402 of the Clean Water Act.
The EPA notice is to be published in the May 23 Federal Register.
EPA said it will use its authority under Section 402(p) to specify that stormwater runoff from logging roads are not discharges “associated with industrial activity.”
The agency said that section of the law “allows EPA to consider a range of regulatory and non-regulatory approaches and determine which forest road discharges (if any) should be regulated under 402(p)(6).”
EPA's action is a response to a ruling by the U.S. Court of Appeals for the Ninth Circuit that said NPDES permits are required for logging roads wherever water runoff is channeled in some fashion, because ditches, culverts or other channels create pollution “point sources” requiring NPDES permits. That 2010 ruling, reaffirmed in 2011, upended a couple decades of EPA policy in which the agency has not required permits (Northwest Environmental Defense Center v. Brown, 640 F.3d 1063, 72 ERC 1897 (9th Cir. 2011); 158 DER A-29, 8/18/10).
Since then, Congress has added a temporary ban, for the fiscal year ending Sept. 30, on the requirement of discharge permits for logging roads. Forest owners, timber companies, 27 state governments, and other interested parties also have asked the U.S. Supreme Court to accept an appeal of the case.
EPA said it intends to act quickly on its rulemaking, given the Sept. 30 end to the congressional ban. EPA also said it would seek public comment on approaches to addressing water quality impacts from forest road discharges.
The EPA regulatory announcement is a sign that “we're all in agreement on what the policy outcome ought to be,” said Dave Tenny, president and chief executive officer of the National Alliance of Forest Owners, in a May 21 interview.
He said he hopes the EPA notice indicates the agency will support the effort to win Supreme Court review of the Ninth Circuit decision. State regulators especially have encouraged EPA to file a brief in support of an appeal (Decker v. Northwest Environmental Defense Center, U.S., No. 11-338, brief requested 12/12/11; Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, U.S., No. 11-347, brief requested 12/12/11; 24 DER A-21, 2/7/12).
A brief from the U.S. solicitor general on behalf of EPA is due May 25 as the Supreme Court considers a petition for a writ of certiorari.
National environmental advocacy groups have not weighed in on the case, leaving it to a regional advocacy group, Northwest Environmental Defense Center, to wage the legal battle.
There is no guarantee that the Ninth Circuit will accept EPA's attempt to settle the case through a regulatory clarification, however.
Tenny said forest owners and others need certainty to make business decisions, and certainty could come through a favorable Supreme Court ruling or legislation that applies to more than just an appropriations cycle.
“We know there are litigators lurking in the shadows who will pounce on whatever the EPA puts out,” Tenny said. “So we will end up back before the Ninth Circuit.”
He said the EPA announcement was a good sign not only for the administration brief due at the Supreme Court, but for administration and congressional consideration of a legislative fix.
By Alan Kovski
The EPA notice of intent to specify that an NPDES permit is not required for stormwater runoff from logging roads is available at http://op.bna.com/env.nsf/r?Open=fwhe-8uhtnx.
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