Ninth Circuit Ruling that Rainwater Runoff from Logging Roads Is a Point Source Discharge Requiring NPDES Permitting Is Under Fire: Relief May Be on the Way

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In August, 2010, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in NEDC v. Brown, in which the court overturned more than 35 years of U.S. Environmental Protection Agency (EPA) regulations governing storm water runoff from logging roads. The court held that rainwater runoff from forest roads used for timber harvesting and other silviculture activities is a “point source” of water pollution under the Clean Water Act, and, therefore requires a discharge permit, notwithstanding the EPA’s own Silviculture Rule (40 C.F.R. § 122.27).

The Silviculture Rule excludes from the National Pollutant Discharge Elimination System (NPDES) “point source” permitting requirements for certain silviculture activities such as “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” from which there is natural runoff. The rule specifically identified these as “nonpoint source” activities and, as a result, the EPA did not require permitting for discharges of pollutants from ditches, culverts and channels that collect stormwater runoff from logging roads. However, the Northwest Environmental Defense Center (NEDC) brought suit claiming that the Silviculture Rule was invalid because logging operations are an industrial activity and, as such, cannot be exempted from the requirement to obtain NPDES “point source” permits.

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