Wednesday, December 28, 2011

Congress Stays NPDES Permitting for Forest Roads

In a move that gives forest landowners a bit of comfort, Congress has stayed NPDES permitting for forest roads until October 1, 2012 through its Omnibus Appropriations Bill. The move was necessary because of a Ninth Circuit Court of Appeals decision that has been extremely unpopular, prompting legislators on both sides of the aisle to support action reversing it. Observers in the Ninth Circuit reported on the case below:
The Ninth Circuit [decision] will effectively require many timberland owners and logging companies to obtain permits for stormwater runoff from logging roads in the western U.S. The case, Northwest Environmental Defense Center (NEDC) v. Brown, involved two Oregon logging roads where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers. The Ninth Circuit initially issued its decision in August 2010...On May 17, the court withdrew its earlier opinion and reissued a revised version. 
In the reissued opinion, the Ninth Circuit reiterated that the stormwater collection systems at issue unambiguously constitute “point sources” under the Clean Water Act (CWA), and that such discharges therefore require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. In so holding, the court significantly limited a decades-old regulation that had historically been viewed as excluding logging road runoff from the NPDES program and charged EPA with developing a general permit to handle the discharges.
The Ninth Circuit's decision could have big implications for forest landowners, and not just on the West Coast. EPA would likely develop forest roads permits for the entire country. This would be extremely difficult:
But while legal and Congressional challenges to the Ninth Circuit’s decision play out, the owners and users of forest roads in the western states (those within the Ninth Circuit’s jurisdiction) still must cope with the court’s holding that their discharges of channeled runoff fall under EPA’s Phase I stormwater regulations. The Ninth Circuit closed its opinion by saying “we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to” establish permitting for forest road discharges “effectively and relatively expeditiously.” That confidence does not appear to be well placed. 
To date, no general permits have been developed that are specifically tailored to channeled discharges from forest roads. Individual permits also are a theoretical possibility, but are unlikely to be developed given the resource commitments they would require for forest road owners and regulatory agencies. Absent a simpler solution, the discharges may have to fit within an existing general permit, although the effluent limits and discharge monitoring required by those permits are unlikely to be well suited to forest roads, and must be carefully evaluated. A closer examination of road networks with an eye toward whether runoff, even though channeled at some point, actually discharges to U.S. Waters from a point source may reduce somewhat the regulatory burden of the court’s decision. These and other regulatory strategies will likely be deployed if the court’s decision withstands the current challenges.
This comes just after the U.S. Supreme Court asked for the Solicitor General's position on the Ninth Circuit case. Forest landowners across the country are hoping the Supreme Court will accept the case and reverse the Ninth Circuit's opinion.