Logging Roads, Stormwater and the Clean Water Act

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In a long anticipated decision, the Ninth Circuit Court of Appeals recently held that stormwater from logging roads requires National Pollution Discharge Elimination System Permits (NPDES) permits under the Clean Water Act. Northwest Environmental 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 quality 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 sediment 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 conjunction 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.

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 macroinvertebrates that provide prey for salmonids. In short, sediment is one of the worst and most pervasive forms of pollution across the West.

The Clean Water Act and the Silvicultural Rule

In 1972, Congress passed the Clean Water Act and required a permit for the discharge of pollution from a “point source,” which means a discrete conveyance like a pipe, ditch or channel. The permit program, known as the NPDES program, has been a very effective way of regulating water pollution since that time. NPDES permits must ensure that the discharge complies with water quality standards, and the permit holder must monitor and report the level of pollution as compared to the permit limits. The permittee submits regular monitoring reports (i.e. discharge monitoring reports) to EPA or state agencies, and those reports often document violations of the permit and therefore the Clean Water Act. Citizens can bring enforcement actions in federal court to enforce the terms of a NPDES permit if EPA or the state agencies allow a polluter to continue their polluting activities.

The pipes, ditches and channels that carry polluted stormwater from logging roads into the stream system meet the plain language definition of point sources in the Clean Water Act. Nevertheless, early in the history of the Clean Water Act, EPA attempted to exempt point source discharges associated with logging activities from the NPDES program. The U.S. Court of Appeals for the D.C. Circuit struck down that exemption in 1973, holding that EPA did not have the discretion to exempt categories of point sources from the NPDES program. Nat. Res. Defence Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). Congress defined point sources in the statute and clearly required permits for all point source discharges. The court held that EPA could not contravene the will of Congress and waive the permit requirement for a whole category of point source discharges associated with logging.

Importantly, the D.C. Circuit Court also rejected EPA’s argument that it would be “infeasible” to administer such a program. EPA argued that the sheer number of point sources made it impossible for the agency to effectively regulate them. In the opinion authored by Judge Leventhal, the D.C. Circuit rejected this argument, stating that EPA could issue general permits that cover categories of point source discharges such as logging roads.

Despite the holding in Costle, EPA has repeatedly tried to exempt logging activities from the NPDES program. Over many years, EPA issued and revised what has come to be known as the “Silvicultural Rule,” which is now embodied at 40 C.F.R. § 122.27. The current version of the regulation defines only certain types of discharges associated with logging activities as point sources, including those associated with rock crushing, gravel washing, log sorting and log storage facilities. EPA, in passing the rule, attempted to categorically exclude all other types of discharge from the definition of point source and therefore the NPDES program.

Over the last ten years, the “Silvicultural Rule” has come under increasing scrutiny by federal courts. In 2002, the Ninth Circuit held that a point source discharge of pesticides must be covered by a permit even though these activities are not listed in the Silvicultural Rule as a point source discharge. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). In that case, the Ninth Circuit echoed the 1973 decision in Costle, holding that EPA 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 Lumber 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.

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 stormwater 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 regulations, which identified industrial activities subject to permitting requirements according to Standard Industrial Classification (“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 activity 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 discharges from facilities or activities excluded from the NPDES program under this part 122.

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

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 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.

The court also addressed the Phase I regulations and held that the discharges at issue are “associated with industrial 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 stormwater from logging roads. Noting that “Congress intentionally passed a ‘tough law,’” the court encouraged EPA to move forward with a permitting regime. Just as the Costle court did more than 30 years earlier, Judge Fletcher called out the general permit program as a possible solution and stated that “the permitting process is not necessarily onerous.”

EPA has successfully implemented storm water permit programs for large and small municipalities (which include extensive road networks), many categories of industrial facilities (including their roads) and construction sites as small as 1 acre in size (including associated roads). The Court made a point of stating that “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously.”

What’s It All Mean?

This opinion is only the first step in bringing logging roads within the permit program of the Clean Water Act, and this issue will continue to be in flux for the foreseeable future. First, defendants in the case have the opportunity for further appeal and can seek rehearing en banc from the Ninth Circuit or possibly review by the Supreme Court. The decision is not final until those appeal options have been exhausted, although it is unusual for unanimous appellate opinions to be reversed.

If the opinion is not reversed, then the case goes back to the District Court where NEDC will have to prove the violations and then seek appropriate relief 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 carry the burden of proving the violations.

Second, the timber industry is likely to ask Congress for an exemption from the Clean Water Act permit program. Although the political process is unpredictable, the science on this issue is clear. Logging roads are a serious source of pollution, and they have longterm 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 leading sources of pollution nationwide.

Finally, state agencies and EPA will have to focus on writing general stormwater permits for logging roads. To achieve improved watershed conditions, those permits must include clear and enforceable protections for water quality, regular monitoring throughout the road network, and a system of reporting and citizen oversight and enforcement. It will be critical for citizens and public interest organizations to participate on a state-by-state basis to ensure that agencies implement lawful permits.

What You Can Do

1) Be on the lookout for legislation that would grant a Clean Water Act exemption to the timber industry;
2) Encourage your state agencies to develop general stormwater permits for logging roads and then participate in that process;
3) Follow the development of the case at www.crag.org;
4) Begin to collect data on the worst logging roads in your local forests

— Christopher Winter is Co-Executive Director and Staff Attorney with the Crag Law Center and is based in Portland, Oregon. The author would like to recognize the work of Paul Kampmeier from the Washington Forest Law Center, who also represented NEDC and argued the case before the Ninth Circuit Court of Appeals.