Clean Water Act permits required for runoff from forest roads


Author:  Damien M. Schiff

This week, the Ninth Circuit Court of Appeals overturned the Environmental Protection Agency’s “silvicultural activities” exemption for stormwater runoff. PLF filed an amicus brief on behalf of the California Forestry Association in support of the timber industry, arguing that the exemption is valid, and that Clean Water Act (CWA) regulation of such runoff would be ineffective and counterproductive.

Under the CWA, one must obtain a permit to discharge a pollutant from a point source into regulated waters. Here, the timber companies build and maintain logging roads. These roads have culverts and drains that channel natural runoff into streams and rivers. No one disputes that the runoff is considered a pollutant. The dispute in this case focused on whether the drains and culverts could be considered “point sources.” EPA through regulation took the position that natural runoff that is merely channeled by such logging road culverts and drains does not require a permit, because those culverts and drains do not qualify as point sources, in turn because they merely facilitate the runoff that would end up naturally in the streams and rivers anyway.

The Ninth Circuit disagreed, holding that the CWA does not authorize EPA to exempt point sources, and that nothing in the statutory definition of point source is dependent upon how the pollutant ended up in the point source, i.e., by natural means or by human intervention. The court also held that Congress’s 1987 CWA amendments that created a new stormwater-specific permitting regime did not codify EPA’s silvicultural activities exemption. Rather, the court held that Congress only indicated that runoff associated with an industrial activity must get a permit. And because EPA has separately determined that logging is a species of industrial activity, it follows, reasoned the court, that the 1987 amendments require a stormwater permit for runoff from silvicultural activities.  The has this commentary.