Ninth Circuit Holds Discharges from Logging Road Ditches are “Point Sources” Under CWA, Silvicultural Exemption Does Apply

In Northwest Environmental Defense Center (“NEDC”), et. al. v. Brown, et. al., No. 07-35266 CV-06-01270-GMK (Aug. 17, 2010), the Ninth Circuit Court of Appeals ruled that discharges from culverts associated with logging roads are “point sources” subject to NPDES permitting requirements. NEDC brought Oregon regulators and various timber companies alleging they violated the Clean Water Act (“CWA”) by failing to obtain permits from Environmental Protection Agency (“EPA”) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers, ultimately depositing sediment into the streams and rivers. NEDC argued that these discharges are from “point sources” within the meaning of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).

 

Defendants argued that their discharges could not be considered point sources due to exemptions found in the “Silvicultural Rule” and the 1987 amendments to the CWA. Silviculture is the practice of controlling the establishment, growth, composition, health, and quality of forests. The “Silvicultural Rule” (CWA, §502(14)) exempts stormwater discharges resulting from silvicultural activities, which are related to rock crushing, gravel washing, log sorting, or log storage and that are comprised entirely of stormwater runoff uncontaminated by industrial activities, from the requirement to obtain an NPDES Permit. In examining EPA’s application of the rule to logging road for consistency with the CWA, the Court held that the CWA’s definition of “point source” did not depend on whether the pollutant arrived as a result of controlled water use by a person or through natural runoff. If the EPA intended the Rule to exempt silvicultural activities from the definition of point source, irrespective of whether, and the manner in which, the runoff is collected, channeled, and discharged into protected water, then the Court held that the rule would conflict with the CWA. If, on the other hand, the rule only protects stormwater discharges from silvicultural activities where the discharge remains in its natural state—and is not collected as channeled through culverts, ditches, etc.—then the Court held it would not conflict with the CWA. Accordingly, the Court held that the Silvicultural Rule does not exempt from the definition of “point source” discharges of stormwater runoff from logging roads that is collected and channeled in a system of ditches, culverts, and conduits before being discharged into streams and rivers. The practical effect of this holding is that the Silvicultural Rule does not mean much to timbering companies from this point forward (assuming other circuits adopt the Ninth Circuit’s reasoning).

 

Next, the Court considered Defendants’ argument that the 1987 CWA amendments exempted their discharges from the NPDES permitting process. In CWA §402(p), adopted as part of the 1987 amendments, Congress required NPDES permits for the most significant sources of stormwater pollution under “Phase I” regulations, including discharges associated with industrial activity. The Court noted that the Standard Industrial Classifications adopted by EPA classified logging as an industrial activity and rejected Defendants’ arguments that logging roads were not “immediate access roads,” as defined in the Phase I regulations. Citing an earlier decision, the Court stated, “if [logging] activity is industrial in nature, and EPA concedes that it is [see SIC 2411], EPA is not free to create exemptions from permitting requirements for such activity.” Accordingly, the Court held that the 1987 amendments to the CWA do not exempt from the NPDES permitting process stormwater runoff from logging roads that is collected in a system of ditches, culverts, and channels, and is then discharged into streams and rivers. This collected runoff constitutes a point source discharge of stormwater “associated with industrial activity” under the terms of CWA §§502(14) and 402(p).

 

Such a discharge requires an NPDES permit.

 

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.