The Environmental Protection Agency issued a decision on July 5, 2016, that declined to regulate discharges from forest roads for regulation under Section 402 of the Clean Water Act.  As such, it remains the case that National Pollutant Discharge Elimination System (NPDES) permits and other Section 402 regulations do not apply to stormwater runoff from logging roads and other specified forestry activities.

The EPA’s recent decision is the most recent installment in long-standing battles generated by environmental activists over whether stormwater runoff from forest roads should be regulated as discharges from a point source under Section 402 of the Clean Water Act.  On March 20, 2013, the U.S. Supreme Court reaffirmed in Decker v. NEDC, 133 S. Ct. 1326 (2013), that a Section 402 National Pollutant Discharge Elimination System (NPDES)  permit was not required under existing EPA regulations for stormwater runoff discharges to streams or other waters from logging or other forest road ditches, culverts, or other channels.  This position was reinforced by federal Farm Bill legislation enacted in February 2014 that amended the Clean Water Act to make clear that a NPDES permit is not required for stormwater related to silvicultural activities, including stormwater runoff from forest roads.  Pub. L. No. 113-79, 128 Stat. 649 (codified as amended at 33 U.S.C. 1342(l) (2014)).

The EPA’s most recent decision evolves out of the U.S. Court of Appeals for the Ninth Circuit’s decision in Environmental Defense Center v. US EPA, 344 F.3d 832 (9th Cir. 2003), which focused upon EPA Phase 2 stormwater program regulations issued in 1999 and Section 402(p)(6) of the CWA.  As explained by the EPA in its recent notice, Section 402(p)(6) authorizes the agency to issue Phase 2 regulations, in consultation with state and local officials and based on studies prescribed in Section 402(p)(5), for stormwater discharges not subject to the Phase 1 NPDES permit requirements of Section 402(p)(2)-(4). 81 Fed. Reg. at 43493.  Section 402(p)(6) also provides the agency discretion in selecting which discharges to regulate and how to regulate them; it does not require the use of NPDES permits as a regulatory mechanism.  Id.  In the 2003 decision, the Ninth Circuit held that EPA had failed to consider environmental group comments regarding whether EPA should regulate stormwater discharges from forest roads under Section 402(p)(6), and it remanded the question to the agency to consider.  In December 2014, environmental groups filed a petition to compel EPA to respond to the question remanded by the Ninth Circuit in 2003.  Shortly thereafter, the parties entered into a settlement by which EPA would issue a decision on the remanded question. 

In its decision, EPA once again declined to extend Section 402(p)(6) regulations to cover stormwater runoff from forest roads and other forestry activities.  In doing so, EPA stressed that forests cover about one-third of the continental United States, or approximately 816 million acres, over half of which are privately owned.  These forests are connected by a vast network of roads built over a course of more than a century.  While EPA recognized that forest roads can be a source of sediment and other runoff that can affect water quality, EPA declined to extend Section 402 regulation to cover such runoff because of the following:

• There are significant practical implications of regulating this vast road network, including the variability in water quality impacts from forest roads throughout the nation.
• Best Management Practices (BMPs) are now widely implemented as standard elements of most private, state, and federal forestry programs, which are effective in improving water quality in waters in proximity to forest roads.
• There are also a number of third-party certification programs that foster an improved stewardship of working forestlands throughout the nation by implementing a wide range of measures, including BMPs that improve water quality. 
• There are a number of other tools in EPA’s toolbox that address forest road discharges, such as Sections 303, 305 and 319 of the Clean Water Act.   

According to its recent notice of decision, EPA will continue to seek additional improvements or approaches to improve water quality of waterbodies impacted in proximity to forest roads.  However, Section 402 will not be the tool used by EPA to do so.  

[View source.]