By: Sarah Liljefelt
The Clean Water Act (“CWA”) prohibits the discharge of pollutants from a point source into the navigable waters of the United States without an NPDES permit. The Act defines a “point source” as “any discernible, confined and discrete conveyance.” 33 U.S.C. §1362(14). Natural runoff is not a point source, and does not require a permit.
Agricultural runoff is exempt by the Act from the permit requirement, even if the runoff is collected into ditches or channels before being returned to a navigable water source. The EPA has consistently held that storm-water runoff from logging roads should be treated similarly to agricultural runoff. Since 1976 the EPA has distinguished between discharges from silviculture (forestry and logging) activities that are a direct result of controlled water use by a person (point source) and those that are the result of natural runoff (non-point source). Thus, it has been the practice that natural runoff from silviculture activities did not require a permit, even if the runoff was collected into discernible channels before discharge.
On August 17, 2010, the Ninth Circuit handed down a decision that invalidated the EPA’s policy of exempting from the CWA’s permitting requirement natural runoff from silviculture activities, if it is collected or controlled before discharge. Northwest Environmental Defense Center v. Brown, 2010 WL 3222105 (2010), also available at: http://www.ca9.uscourts.gov/datastore/opinions/2010/08/17/07-35266.pdf. The court held that the prior silviculure policy was inconsistent with the text of the CWA because the CWA requires permitting for the discharge of pollutants from point sources, and distinguishes between point and non-point sources based on the method of discharge into the body of water, not based on the initial cause of the discharge. Because the defendants in this case, the Oregon State Forester, members of the Oregon Board of Forestry, and various timber companies, channeled storm-water runoff into ditches and pipes before discharge into forest streams and rivers, the court held that these discharges constituted point source pollution, which requires a permit.
The NEDC v. Brown decision will require the EPA to treat controlled runoff of natural storm-water from logging roads as Phase I stormwater: storm-water that is associated with industrial activities and requires an NPDES permit to be released. The Ninth Circuit recognized the sizeable demand that its decision will place on the EPA, but stated its confidence, “given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to [regulate the logging road runoff] effectively and relatively expeditiously.” Id. at *20. State forestry agencies and timber companies in Oregon, who are charged with maintaining logging roads, must now seek NPDES permits for discharges of natural runoff carried into navigable waters by channels, ditches, pipes, or the like.
