I've been following developments on this forest roads issue for some time now. Forest landowners are facing a great deal of regulatory uncertainty right now because of EPA's rule developments, as well as the U.S. Supreme Court's review of the issue coming this fall.
EPA is hoping that this rule will provide some clarity. Basically, EPA is reinforcing its longstanding exemption of logging roads from permitting requirements:
[EPA] is proposing to revise its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. In Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011) (NEDC), a citizen suit was filed alleging violations of the Clean Water Act for discharging stormwater from ditches alongside two logging roads in state forests without a permit. The court held that because the stormwater runoff from the two roads in question is collected by and then discharged from a system of ditches culverts and channels, there was a point source discharge of industrial stormwater for which an NPDES permit is required. The EPA did not intend for logging roads to be regulated as industrial facilities. However, in light of NEDC, the EPA proposes the addition of language to 40 CFR 122.26(b)(14) to clarify the Agency’s intent.Footnote 1 of the proposed rule further states that EPA still hopes that the U.S. Supreme Court will determine that forest and logging roads are not point sources (which would make its proposed exemption above unnecessary):
This rulemaking responds to the uncertainty created by the Ninth Circuit's holding in NEDC that certain channeled discharges of stormwater from logging roads constitute point source discharges, bringing them within the Section 402 NPDES permitting framework. This proposed rule, by clarifying what counts as a discharge "associated with industrial activity," makes clear that such discharges do not require NPDES permits even if they are point source discharges. Nothing in this proposed rule should be construed as conceding that discharges of stormwater from logging roads constitute point source discharges, a question on which the Supreme Court has granted review for the October 2012 term.More information is available on EPA's website for Stormwater Discharges from Forest Roads. EPA has posted the proposed rule, a fact sheet, and a frequently asked questions sheet.
