U.S. Supreme Court: NPDES Permits Are Not Required For Logging Road Stormwater Runoff

by Perkins Coie

The U.S. Supreme Court has reversed a 2010 Ninth Circuit Court of Appeals decision[1] and reaffirmed that a federal Clean Water Act National Pollutant Discharge Elimination System (NPDES) point source discharge permit is not required under Environmental Protection Agency (EPA) regulations for stormwater runoff discharges to streams or other waters from logging road ditches, culverts or other channels.  The Supreme Court’s March 20, 2013 Decker v. NEDC opinion[2] concludes that:

  1. There was no jurisdictional bar to the suit of the Northwest Environmental Defense Center (NEDC) filed in the U.S. District Court for the District of Oregon that initiated the litigation, which claimed that stormwater runoff related to a timber sale contractor's log truck hauling on Oregon state forest roads violated the EPA Clean Water Act's “Silviculture Rule” regulation.[3]  The Court ruled that provisions of the Clean Water Act requiring certain challenges of agency regulations to be initiated in the federal courts of appeal (33 U.S.C. 1369(b)) did not prohibit the suit; it fell within the scope of the Clean Water Act provisions authorizing citizen suits to enforce an asserted obligation of the statute or its regulations against an alleged violator (33 U.S.C. 1365).
  2. The EPA’s recent amendment to its regulations in response to the litigation, which clarified that logging road stormwater runoff is not included as an “industrial source” category requiring NPDES permits under the statute,[4] did not make the case moot.  A ruling in the plaintiffs’ favor could still result in Clean Water Act civil penalties and other remedies against the defendants for violations under the prior regulations.
  3. On the merits, the pre-amendment version of the regulations exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting requirements.  The regulation is a reasonable interpretation of the statutory term “associated with industrial activity, ” and the long-standing, consistent EPA interpretation of its own regulation to exclude channelized logging road stormwater discharges from such industrial category point sources is entitled to court deference.  The Court noted the extensive existing regulation of logging road stormwater runoff under Oregon and other state forest practices act rules, and that the EPA could reasonably conclude that further federal regulation would be duplicative or counterproductive.

This decision does not necessarily end litigation over logging road stormwater runoff.  In January 2013, NEDC filed suit in the Ninth Circuit challenging the recently amended EPA regulation, asserting that logging roads are point sources under the Clean Water Act that require an NPDES permit.[5]  In order to end any uncertainty, forest landowner and industry groups can be expected to continue to push for federal legislation amending the Clean Water Act to clarify that roads and other forest management infrastructure and activities that are not at discrete sawmill and other industrial plant sites are excluded from the NPDES permit program,  and should instead continue to be regulated to protect water quality under state best management practices and similar rules.

However, the Supreme Court ruling brings a welcome respite from the uncertainty created by the 2010 Ninth Circuit decision for public and private landowners and operators.  If sustained, the Ninth Circuit ruling could have resulted in huge numbers of NPDES permits being required for the vast networks of forest roads that exist nationwide that are used in whole or part for logging and other forestry practices, at least until such time as corrective legislation might be enacted.

Read our previous Client Updates regarding this legislation:
EPA Announces Intent to Propose Revised Logging Road Storm Water Regulations
Ninth Circuit Denies Rehearing in NEDC v. Brown 
U.S. Loggers Lose an Important EPA Exemption

[1] Nw. Envtl. Def. Ctr. v. Brown, 617 F.3d 1176 (9th Cir. 2010), withdrawn and superseded by 640 F.3d 1063 (9th Cir. 2011).

[2] 568 U.S. ____ (2013).

[3] 40 C.F.R. § 122.27.

[4] 77 Fed. Reg. 72970-72975 (Dec. 7, 2012) (to be codified at 40 C.F.R. § 122,26(b)(14)(ii)).

[5] Nw. Envtl. Def. v. U.S. EPA, No. 13-70057 (9th Cir. filed Jan. 4, 2013)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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