I previously wrote about the Ninth Circuit decision in Northwest Environmental Defense Center v. Brown (NEDC), 640 F.3d 1063 (9th Cir. 2011) where the court overturned EPA's Silviculture Rule and said that where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers, these discharges constitute industrial “point sources” under the CWA and require NPDES permits. Now, the EPA has revised its Phase I stormwater regulations to say that a NPDES permit is (again) not required for stormwater discharges from logging roads. The EPA says it did not intend for logging roads to be regulated as industrial facilities, and so in light of NEDC, it has revised its rules to clarify the Agency’s intent.
In the meantime, the Ninth Circuit case is now before the Supreme Court, which heard oral arguments on it on December 3, 2012.
The EPA believes that the more flexible regulation available under Section 402(p)(6) of the Clean Water Act is better suited to addressing the complexity of forest road ownership, management, and use than the NPDES discharge limitations that apply to industrial dischargers. It has added language to its stormwater regulations to clarify that, for the purposes of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities under the Logging Industrial Code that are treated as “industrial discharges” for stormwater purposes are rock crushing, gravel washing, log sorting, and log storage.© 2013 Varnum LLP