New Law Eliminates Any Clean Water Act NPDES Permit Requirement For Logging Road Stormwater Runoff

by Perkins Coie
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On February 7, 2014, President Obama signed into law the 2014 Farm Bill, H.R. 2642.  Section 12313 of the Bill (Silvicultural Activities) amends the Clean Water Act to make clear that a National Pollutant Discharge Elimination System permit is not required for stormwater runoff from logging roads and other specified forestry activities.

This law follows the U.S. Supreme Court decision Decker v. NEDC, 133 S. Ct. 1326 (2013), which reversed a U.S. Ninth Circuit Court of Appeals decision and upheld EPA’s interpretation of its own regulations to exclude stormwater runoff from logging roads as a discharge associated with industrial activity subject to NPDES permitting under Section 402 of the Clean Water Act.  Nevertheless, the Ninth Circuit subsequently revived the specific issue of whether stormwater runoff collected in a system of ditches, culverts and channels are point sources to which Clean Water Act NPDES permit requirements apply.  NEDC v. Decker, 728 F.3d 1085 (9th Cir. Aug. 30, 2013). 

To end this uncertainty, the new law specifically eliminates any NPDES permit requirement for any discharge from runoff resulting from the following forestry activities conducted in accordance with standard industry practice:

  • Nursery operations;
  • Site preparation;
  • Reforestation and subsequent cultural treatment;
  • Thinning;
  • Prescribed burning;
  • Pest and fire control;
  • Harvesting operations;
  • Surface drainage; or
  • Road construction and maintenance.

The new statute also excludes any non-permitting program established under Section 402(p)(6) of the Clean Water Act or other limitations that might be deemed to apply to the activities listed above from the citizen suit provisions of Section 505(a) of the Clean Water Act.

The law should thus eliminate any uncertainty associated with a portion of the EPA’s pre-existing regulation known as the Silviculture Rule, 40 C.F.R. § 122.27, that defines these same activities as non-point source silviculture activities which are not subject to a NPDES permit requirement.  The new law does not change the status of other permitting requirements, such as requirements for a Section 404 Dredge and Fill Permit.  Logging and other forest road operators will continue to be subject to state best management practices and similar rules that protect water quality from excessive erosion and sedimentation.  However, Congress has clearly directed that EPA shall not require or direct any states to require an NPDES permit for runoff from logging, related roads or any of the other activities listed above.

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Perkins Coie
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