Stormwater Discharges from Logging Roads Require Clean Water Act Permits, Ninth Circuit Holds

According to a recent decision from the Ninth Circuit, public and private forest owners and logging companies may be required to obtain permits for stormwater runoff that occurs on the countless logging roads in much of the west. The case, Northwest Environmental Defense Center v. Brown,[1] involved two Oregon logging roads where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers. The court held that the stormwater collection systems unambiguously constitute “point sources” under the Clean Water Act (CWA), and that the discharges therefore require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. It also deemed the logging roads to be an “industrial activity,” apparently making it difficult for any future regulatory action to limit the types of logging road discharges that require permits. In so holding, the court significantly limited a decades-old regulation that historically interpreted logging road runoff as outside the NPDES program, and charged EPA with developing a general permit to handle the discharges. Although the decision will likely be appealed, entities that own and operate logging roads are, for the time being, faced with the threat of citizen suits or enforcement actions for unpermitted discharges.

Background

The CWA prohibits the discharge of a “pollutant” into waters of the United States from a “point source” without an NPDES permit.[2] The CWA defines a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit … from which pollutants are or may be discharged.”[3] The CWA expressly exempts “agricultural stormwater discharges and return flows from irrigated agriculture” from the definition of “point source.” It does not define “agricultural stormwater” or “nonpoint sources.”

EPA has promulgated detailed regulations under the NPDES program, some of which clarify the types of activities that require NPDES permits. EPA’s “Silvicultural Rule,” which has essentially been intact for over thirty years, defines a limited class of activities as “silvicultural point sources,” and interprets “nonpoint source silvicultural activities” as outside the NPDES program. It limits “silvicultural point sources” to “rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States.”[4] Falling outside the definition are “non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.”[5]

Factual and Procedural Background

At issue in NEDC v. Brown were two logging roads in Oregon’s Tillamook State Forest. The Oregon Department of Forestry and the Oregon Board of Forestry own the roads. Various timber companies use the roads to access logging sites and to haul timber under contracts with Oregon. The timber sales contracts designate specific routes for timber hauling and require the timber companies to maintain the roads and their associated stormwater collection systems, which are ditches, culverts, and channels that collect and convey stormwater runoff from the roads to tributary streams and adjacent rivers. As is the case throughout the Pacific Northwest and other areas with high rainfall, these stormwater collection systems reduce erosion of the roads and, when properly constructed, effectively reduce the discharge of sediment to adjacent streams that would otherwise occur. An environmental group, Northwest Environmental Defense Center (NEDC), brought a citizen suit under the CWA, alleging that sediment discharges in stormwater from these roads negatively impact aquatic life, such as salmon and trout, and require permits under the NPDES program.

The District Court of Oregon dismissed NEDC’s lawsuit for failure to state a claim, holding that the Silvicultural Rule exempted the discharges from the NPDES program. According to the district court, “the fact that pollutants deposited on top of the roads during timber hauling end up being washed into the water bodies does not turn the road system with its associated ditches and culverts into a point source. The road/ditch/culvert system and timber hauling on it is a traditional dispersed activity from which pollution flowing into the water cannot be traced to single discrete sources.”[6]

The Ninth Circuit’s Decision

On appeal, NEDC argued that the unpermitted stormwater discharges violate the CWA, despite the Silvicultural Rule. The Ninth Circuit also addressed a second issue that the district court elected not to address, i.e., whether and to what effect the 1987 amendments to the CWA governing stormwater, and EPA’s regulations implementing those amendments, apply to stormwater runoff from logging roads. The United States was not a party to the lawsuit, but submitted an amicus curiae brief encouraging the court to uphold the Silvicultural Rule as a permissible construction of the CWA.

The Ninth Circuit agreed with NEDC, holding that that discharges from the logging roads require compliance with an NPDES permit. Although the court stopped short of expressly invalidating the Silvicultural Rule as a whole, the court held that the Rule does not and cannot, consistent with the CWA, exempt runoff that is collected from logging roads and discharged from a ditch or culvert to jurisdictional waters.

In addressing the Silvicultural Rule, the Ninth Circuit’s decision exhaustively reviewed the statutory definition of “point sources” under the CWA, case law interpreting the distinction between point and nonpoint sources, and the genesis and history of the Silvicultural Rule. In the Ninth Circuit, nonpoint source pollution is “the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source.”[7] In contrast, the Ninth Circuit panel said that point source discharges occur “when stormwater is collected in a system of ditches, culverts, and channels and is then discharged into a stream of river ….”[8] Because “runoff is not inherently a nonpoint or a point source of pollution,” according to the court, the distinction between point and nonpoint source discharges turns not on the runoff itself, but on whether stormwater “is allowed to run off naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through a system of ditches, culverts, channels, and similar conveyances (and is thus a point source discharge).”[9]

Yet, in the court’s view, EPA’s intent in the Silvicultural Rule was to focus on the “source of the pollutant” and not the mechanism of discharge, where “any natural runoff containing pollutants” from silvicultural activities is exempt “from the definition of point source, irrespective of whether, and the manner in which, the runoff is collected, channeled, and discharged into” jurisdictional water.[10] This approach, the court opined, directly conflicts with the statutory definition of “point source” under the CWA, and is therefore invalid. The court did not, however, consider the effect of the CWA’s exclusion of agricultural stormwater from the “point source” definition.

Instead of striking down the Silvicultural Rule, the court determined that the Rule is subject to a second interpretation that is consistent with the CWA, even though it neither “reflect[s] the intent of EPA” nor exempts the discharges at issue in the case. Under the latter interpretation, the Rule “exempts natural runoff from silvicultural activities …, but only as long as the ‘natural runoff’ remains natural. That is, the exemption ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into” jurisdictional waters.[11] Consequently, in jurisdictions within the Ninth Circuit, the Rule only excludes from the CWA’s NPDES program runoff from logging roads that lack stormwater management systems.

Having already held that the discharges require NPDES permits, the court also addressed an argument that was not decided by the district court: the impact of the CWA’s 1987 amendments and EPA’s regulations implementing those amendments. The 1987 amendments ushered in a tiered approach to addressing stormwater discharges, in what is now CWA § 402(p). The 1987 amendments were meant to provide EPA with an orderly method of focusing its limited resources on primary stormwater discharges without becoming overwhelmed by the potentially limitless number of de minimus sources of stormwater discharges that nevertheless constitute “point sources” under the CWA. Under the phased approach, Congress required EPA first to promulgate so-called “Phase I regulations” for five classes of significant sources of stormwater pollution, including “industrial activity.” Second, Congress required EPA to study stormwater discharges that were not covered by the Phase I regulations, and to issue “Phase II” regulations accordingly.

The court acknowledged that it is “within the discretion of EPA to promulgate Phase II regulations requiring, or not requiring, permits for” discharges from relatively de minimus sources, but stated that EPA lacks discretion with respect to the entities that fall within the Phase I regulations.[12] Because Congress expressly required EPA to promulgate Phase I regulations to address “discharges associated with industrial activity,”[13] the court held that, “if silvicultural activity is industrial in nature, § 402(p) requires that discharges from such activity obtain NPDES permits.”[14]

After reviewing EPA’s Phase I regulations, the court concluded that stormwater discharges from logging roads fall within the scope of Phase I as “storm water discharges associated with industrial activity,” and therefore require compliance with the NPDES program. The court based this ruling on a provision of EPA’s regulations that specifies broad Standard Industrial Classifications (SIC) of industries considered “industrial activities,” one of which includes “logging,” defined as “establishments primarily engaged in cutting timber and in producing … primary forest or wood raw materials … in the field.”[15] The court also noted that EPA had defined “stormwater discharge associated with industrial activity” as including “immediate access roads … used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility.”[16] The court gave no significance to the first sentence of the regulatory definition upon which its analysis rested: “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.”[17]

Oregon and the timber companies advanced several arguments attempting to distinguish the typical industrial activity contemplated by the Phase I regulations from logging roads that occur in vast, often remote areas, far from a true “facility.” The court rejected these arguments, concluding that “collected runoff constitutes a point source discharge of stormwater ‘associated with industrial activity’ under the terms of § 502(14) and § 402(p).”[18] First, according to the court, and relying on EPA’s preamble to the Phase I rule, logging roads qualify as “immediate access roads,” because they are “roads which are exclusively or primarily dedicated for use by the industrial facility.”[19] Second, logging roads are “primarily dedicated” to use by the logging companies, because, although logging roads are “often used for recreation, … that is not their primary use. Logging companies not only build and maintain the roads and their drainage systems pursuant to contracts with the State. Logging is also the roads’ sine qua non: If there were no logging, there would be no logging roads.”[20] Finally, the court concluded that the Phase I rule defines “industrial activity” broadly enough to encompass other non-traditional sites that are directly related to an industrial process, including “immediate access roads.”[21]

In its amicus brief, the United States implored the court to delay its ruling to allow for EPA’s consideration of whether the discharges should be included in EPA’s Phase II stormwater regulations. In rejecting this request, the court reiterated that logging road runoff is subject to the Phase I regulations, and opined that EPA should be able to “effectively and relatively expeditiously” adapt the “closely analogous NPDES permitting process for stormwater runoff from other kinds of roads” to a general permit for stormwater discharges from logging roads.[22]

Implications

Despite the court’s assurance that EPA can “expeditiously” develop a general permitting program for stormwater discharges on logging roads, the sheer number of roads that would be subject to the general permit and the varied climatic conditions and geography of the areas where they exist will require significant study and review. EPA only recently finalized two other general permits for construction stormwater and pesticide applications, both of which were necessitated by court intervention and took several years to develop.[23] For now, the private and public entities that own or operate on logging roads equipped with stormwater management systems are faced with the threat of enforcement action or citizen suits, with their only option to embark on the arduous process of applying for individual permits from EPA or state agencies with authority to issue permits under the CWA. No appeal has been filed at the time of this article, but a petition for en banc review before the Ninth Circuit is likely, and a petition for Supreme Court review is possible.

For more information on stormwater permitting, please contact Meline MacCurdy or any other member of Marten Law’s Water Quality practice group.