Legal Notes

Logging Roads, Stormwater and the

Clean Water Act
­— By Christopher Winter

I
n a long anticipated decision, the
Ninth Circuit Court of Appeals
recently held that stormwater from
logging roads requires National Pol-
lution Discharge Elimination System
Permits (NPDES) permits under the
Clean Water Act. Northwest Environ-
mental Defense Center v. Brown, __ F.3d
__ (9th Cir. 2010), 2010 WL 322105. The
decision could set important precedent
for management of logging roads while
providing citizen activists with new
tools in their work to protect aquatic
habitat, however, it is only a first step
in bringing logging roads within the
NPDES program and many unanswered
questions remain.

Logging Roads and

Sediment
Sediment associated with logging is
a well-documented threat to water qual-
ity throughout the West. In 2000, the
Environmental Protection Agency found
that sediment associated with logging
activities was the fifth leading source of
water quality impairment to rivers and
streams nationwide. Across the West,
roads are the leading source of sedi-
ment from logging activities.
Logging roads are often designed to
collect stormwater in ditches, channels
and culverts that discharge directly into
surface water near or adjacent to the
road system. In other words, the road
system is hydrologically connected
to the stream network. In conjunc-
tion with timber sales, contractors
usually apply gravel to reinforce the
road surface for the heavy truck traffic
associated with timber hauling. In the
process of hauling, the gravel becomes
ground into fine sediment.
Culverts routinely become clogged by debris and require ongoing maintenance. Under
the court’s ruling, they are considered point sources of pollution and will require
permits. Photo courtesy of Bureau of Land Management.
In short, sediment is one of the worst
and most pervasive forms of pollution
across the West.
When it rains, stormwater carries the fine sediment from the road surface
directly into the stream network via the ditches and culverts. The resulting
sedimentation has a number of well-studied impacts on water quality and stream
geomorphology, which cause harm to aquatic species like salmon and steelhead.
Excess sediment contributes to channel simplification, including loss in the depth,
frequency, and quality of pools and off-channel habitat critical for rearing salmon.
Sediment also fills in spawning grounds, reducing egg survival rates. Increased
turbidity can impair feeding activities, clog gills and damage habitat for macroin-
vertebrates that provide prey for salmonids. In short, sediment is one of the worst
and most pervasive forms of pollution across the West.
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The Clean Water Act and the Silvicultural Rule Despite the holding in Costle, EPA
has repeatedly tried to exempt logging
activities from the NPDES program.
In 1972, Congress passed the Clean Water Act and required a permit for the Over many years, EPA issued and
discharge of pollution from a “point source,” which means a discrete conveyance revised what has come to be known as
like a pipe, ditch or channel. The permit program, known as the NPDES program, the “Silvicultural Rule,” which is now
has been a very effective way of regulating water pollution since that time. NPDES embodied at 40 C.F.R. § 122.27. The cur-
permits must ensure that the discharge complies with water quality standards, and rent version of the regulation defines
the permit holder must monitor and report the level of pollution as compared to only certain types of discharges associ-
the permit limits. The permittee submits regular monitoring reports (i.e. discharge ated with logging activities as point
monitoring reports) to EPA or state agencies, and those reports often document sources, including those associated
violations of the permit and therefore the Clean Water Act. Citizens can bring en- with rock crushing, gravel washing,
forcement actions in federal court to enforce the terms of a NPDES permit if EPA or log sorting and log storage facilities.
the state agencies allow a polluter to continue their polluting activities. EPA, in passing the rule, attempted to
categorically exclude all other types
The pipes, ditches and channels that carry polluted stormwater from logging of discharge from the definition of
roads into the stream system meet the plain language definition of point sources point source and therefore the NPDES
in the Clean Water Act. Nevertheless, early in the history of the Clean Water Act, program.
EPA attempted to exempt point source discharges associated with logging activi-
ties from the NPDES program. The U.S. Court of Appeals for the D.C. Circuit struck Over the last ten years, the “Silvi-
down that exemption in 1973, holding that EPA did not have the discretion to cultural Rule” has come under increas-
exempt categories of point sources from the NPDES program. Nat. Res. Defence ing scrutiny by federal courts. In 2002,
Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). Congress defined point sources in the Ninth Circuit held that a point
the statute and clearly required permits for all point source discharges. The court source discharge of pesticides must be
held that EPA could not contravene the will of Congress and waive the permit re- covered by a permit even though these
quirement for a whole category of point source discharges associated with logging. activities are not listed in the Silvicul-
tural Rule as a point source discharge.
Importantly, the D.C. Circuit Court also rejected EPA’s argument that it would League of Wilderness Defenders/Blue
be “infeasible” to administer such a program. EPA argued that the sheer number Mountains Biodiversity Project v. Fors-
of point sources made it impossible for the agency to effectively regulate them. In gren, 309 F.3d 1181 (9th Cir. 2002). In
the opinion authored by Judge Leventhal, the D.C. Circuit rejected this argument, that case, the Ninth Circuit echoed the
stating that EPA could issue general permits that cover categories of point source 1973 decision in Costle, holding that EPA
discharges such as logging roads. cannot ignore Congress’ direction and
redefine pipes as a non-point source of
pollution.

In 2003, the Northern District of

California, relying on the Forsgren case,
held that stormwater from logging
roads that was collected in ditches and
discharged to surface water is subject
to the NPDES program. Environmental
Protection Information Ctr. v. Pacific Lum-
ber Co., 2003 WL 25506817 (N.D. Cal.).
Because Pacific Lumber Co. eventually
filed for bankruptcy, that case never
made it to the Ninth Circuit Court of
Appeals.

Gravel is easily crushed by the weight of logging trucks and can find its way into lakes, rivers and
streams. Photo courtesy of Bureau of Land Management.
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 — Legal Notes, cont’d ­—

Section 402(p) of the Clean Water Act

and Stormwater
While EPA was struggling to figure out whether and how
to regulate discharges associated with logging activities,
Congress was taking action on the nationwide stormwater
problem. In 1987, Congress amended the Clean Water Act
specifically to address stormwater pollution and establish
an orderly process for bringing these discharges within the
scope of the NPDES program. Section 402(p), 33 U.S.C. §
1342(p), established a tiered approach to permitting storm-
water discharges from point sources. As part of the first
phase or Phase I, Congress designated five specific sources
of stormwater, which were required to apply for permits by
1990. The Phase I sources included discharges “associated
with industrial activity.”

In 1990, EPA implemented the Phase I stormwater regula-

tions, which identified industrial activities subject to permit-
ting requirements according to Standard Industrial Classifica-
tion (“SIC”) codes. The regulations unambiguously include
facilities classified as SIC 24, which includes logging under
SIC 2411, as those engaged in industrial activity. 40 C.F.R. §
122.26(b)(14)(ii). The regulation provides:

Storm water discharge associated with industrial activ-

ity means the discharge from any conveyance that is used
for collecting and conveying storm water and that is directly
related to manufacturing, processing or raw materials storage
areas at an industrial plant. The term does not include dis-
charges from facilities or activities excluded from the NPDES
program under this part 122. Erosion control practices include measures to intercept
sediment. Photo courtesy of Bureau of Land Management.
40 C.F.R. § 122.26(b)(14).

The last sentence of the regulation – the reference to part

122 – includes the Silvicultural Rule at 40 C.F.R. § 122.27. In
this way, EPA attempted to exempt stormwater from logging
roads by incorporating the Silvicultural Rule by reference.
The Court’s Decision
pursuant to the statutory definition and that EPA lacked
authority to exempt these sources from the NPDES program
by regulation. According to the opinion, the Silvicultural
Rule cannot be read to redefine a point source as a non-point
source, and therefore point sources associated with logging
roads must have NPDES permits.

In a unanimous opinion authored by Judge William A.
Fletcher, the Ninth Circuit held that discharges of stormwater
from ditches, channels and culverts require NPDES permits.
The District Court in Portland, Oregon granted a motion to
dismiss the case after the Northwest Environmental Defense
Center (NEDC) had filed its complaint, and held that these
types of discharges do not require permits. The Ninth Circuit
reversed the District Court and remanded the case for further
proceedings.
The Ninth Circuit first held that the pipes, ditches and
culverts associated with logging roads are point sources
The court also addressed the Phase I regulations and
held that the discharges at issue are “associated with in-
dustrial activity” and therefore require a permit pursuant to
Section 402(p) of the Clean Water Act. The court rejected
arguments made by the timber industry that timber hauling
activities are not “associated with industrial activity.”
In concluding its opinion, the Ninth Circuit responded to
the arguments of EPA and the timber industry regarding the
potential administrative burden related to permitting storm-
water from logging roads. Noting that “Congress intentionally
passed a ‘tough law,’” the court encouraged EPA to move for-

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 — Legal Notes, cont’d ­—

from the court. Because the District

Court dismissed the case as a matter of
law, the court never ruled on the factual
evidence of the violations that NEDC
had collected. On remand, NEDC will car-
ry the burden of proving the violations.

Second, the timber industry is

likely to ask Congress for an exemp-
tion from the Clean Water Act permit
program. Although the political process
is unpredictable, the science on this is-
sue is clear. Logging roads are a serious
source of pollution, and they have long-
term negative impacts on salmon and
other aquatic species. One would hope,
given the clear science on this issue,
that Congress would not grant a Clean
Water Act exemption for one of the lead-
ing sources of pollution nationwide.

Finally, state agencies and EPA

The decision clarifies that logging activities do indeed create point sources of sediment will have to focus on writing general
pollution that require EPA permits. Photo courtesy of Bureau of Land Management. stormwater permits for logging roads.
To achieve improved watershed condi-
tions, those permits must include clear
The Ninth Circuit first held that the and enforceable protections for water
quality, regular monitoring through-
pipes, ditches and culverts associated out the road network, and a system of
with logging roads are point sources... reporting and citizen oversight and en-
forcement. It will be critical for citizens
and... must have NPDES permits. and public interest organizations to
participate on a state-by-state basis to
ensure that agencies implement lawful
permits.
ward with a permitting regime. Just as
the Costle court did more than 30 years What’s It All Mean?
earlier, Judge Fletcher called out the
general permit program as a possible This opinion is only the first step in What You Can Do
solution and stated that “the permitting bringing logging roads within the permit
program of the Clean Water Act, and 1) Be on the lookout for legislation
process is not necessarily onerous.”
this issue will continue to be in flux for that would grant a Clean Water Act
EPA has successfully implemented
the foreseeable future. First, defendants exemption to the timber industry;
storm water permit programs for large
in the case have the opportunity for 2) Encourage your state agencies
and small municipalities (which include
further appeal and can seek rehearing to develop general stormwater permits
extensive road networks), many cat-
en banc from the Ninth Circuit or pos- for logging roads and then participate in
egories of industrial facilities (including
sibly review by the Supreme Court. The that process;
their roads) and construction sites as
decision is not final until those appeal 3) Follow the development of the
small as 1 acre in size (including associ-
options have been exhausted, although case at www.crag.org;
ated roads). The Court made a point
it is unusual for unanimous appellate 4) Begin to collect data on the
of stating that “we are confident, given
opinions to be reversed. worst logging roads in your local forests
the closely analogous NPDES permit- (see sidebar)
ting process for stormwater runoff from
other kinds of roads, that EPA will be If the opinion is not reversed, then
the case goes back to the District Court — Christopher Winter is Co-Executive
able to do so effectively and relatively
where NEDC will have to prove the vio- Director and Staff Attorney with the Crag
expeditiously.”
lations and then seek appropriate relief Law Center (www.crag.org) and is based
in Portland, Oregon. CRAG represented
NEDC in the lawsuit.

9 The Road-RIPorter, Autumn Equinox 2010