In a long-anticipated decision, the Ninth Circuit Court of Appeals ruled this week that stormwater – largely rainwater – that runs off of logging roads into streams and rivers must be permitted under the Clean Water Act (CWA). This decision (Northwest Environmental Defense Center v. Brown) will have far-ranging impacts that will result in permits being required under the CWA for logging operations on both private and public land.
The case began in 2006, when the Northwest Environmental Defense Center (NEDC) brought suit against the Oregon Department of Forestry, members of the Oregon Board of Forestry in their official capacity and various timber companies contending that the defendants violated the CWA by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater runoff that flowed from logging roads into ditches, culverts, and channels and then into forest streams and rivers. The logging roads, which are owned by the Oregon Department of Forestry and Oregon Board of Forestry, are primarily used by the defendant timber companies to gain access to logging sites and to haul timber out of the forest. The logging roads were designed and constructed with systems of ditches, culverts and channels that collect and convey stormwater runoff. The court found that the stormwater eventually deposits large amounts of sediment from timber hauling on the logging roads into the streams and rivers. The sediment then adversely affects fish.
NEDC contended that the discharges of stormwater runoff were from “point sources,” which require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES). The lower court dismissed NEDC’s complaint, concluding that the discharges were exempted from the NPDES permitting requirements by the Silvicultural Rule. The Silvicultural Rule, promulgated by EPA, exempts from the NPDES requirements “harvesting operations, surface drainage, and road construction and maintenance from which there is natural runoff.”
The Ninth Circuit reversed the lower court. It ruled that whether stormwater runoff must be permitted under the CWA depends on whether it is allowed to runoff naturally (and thus, a non-point source) or is “collected, channeled, and discharged though a system of ditches, culverts, channels, and similar conveyances” (and thus, is a point-source). The court found that the Silvicultural Rule could not exempt from the definition of a point-source stormwater runoff from logging roads that is collected and channeled in a system of ditches, culverts, and conduits before being discharged into streams and waters. The court found that no other exemptions applied.
This case has far-reaching implications beyond the permitting of stormwater runoff from Oregon’s logging roads. It raises considerable doubt as to the continued viability of the Silvicultural Rule and similar EPA exemptions. Although the court expressed sympathy for EPA’s regulatory burden in administering the CWA’s permitting requirements, it was “confident” EPA would be able to “effectively” and “relatively expeditiously” permit stormwater runoff from logging roads. Undoubtedly, this decision will be used to question the scope of the NPDES requirements and CWA into the future.