May 24, 2012

EPA may provide regulatory relief to forest road owners

By Damien M. Schiff Senior Attorney

Yesterday, the EPA announced its intent to amend its Clean Water Act stormwater regulations governing runoff from forest roads and other silvicultural activities.  EPA’s action is the result of the Ninth Circuit’s decision in Northwest Environmental Defense Center v. Brown, for which a petition for certiorari is pending in the United States Supreme Court.  (PLF participated as amicus in the Ninth Circuit and in support of the cert petition).  In Brown, the Ninth Circuit overturned EPA’s stormwater permit exemption for logging roads.  Recall that the Clean Water Act regulates discharges of “pollutants” from a “point source” into the “waters of the United States.”  In the late 1980s, Congress amended the Clean Water Act to provide a special regulatory regime for stormwater discharges.  That regime did not, however, attempt to regulate all stormwater discharges.  For example, if the stormwater discharge were not “associated with industrial activity,” the Clean Water Act would not apply.

In Brown, the Ninth Circuit held, contrary to EPA’s silvicultural exemption, that a forest logging road does constitute a “point source.”  Moreover, because logging roads are associated with an industrial activity (timber harvesting), stormwater runoff from such roads falls within the Clean Water Act’s ambit.  The Brown decision, if it stands, could impose ruinous consequences on logging, because it could in theory require hundreds of thousands of new stormwater permits.  EPA’s proposed regulatory amendments would get around Brown by declaring that stormwater runoff from logging roads is not “associated with industrial activity,” and therefore does not fall within the Clean Water Act’s scope, notwithstanding that logging roads are point sources.

If EPA finalizes this redefinition, one can be sure that the environmentalist plaintiffs in Brown will file a new lawsuit.

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