Enough is enough! Stormwater discharged from man-made pipes, ditches, and channels along logging roads is not nonpoint source "natural runoff".

• Author: Kampmeier, Paul

1. INTRODUCTION II. LOGGING ROAD POLLUTION Is WIDESPREAD AND HARMFUL Although EPA's Stormwater Rule Appeared to Require NPDES Permits for Logging Roads, Many incorrectly Viewed Stormwater From Pipes and Ditches Along Logging Roads as Nonpoint Source 'Natural Runoff'. III. THE LAWSUIT AND COURT PROCEEDINGS What Did the Supreme Court Do With the Point Source Issue? IV. WHERE DO THINGS STAND NOW? I. INTRODUCTION

   This issue of Environmental Law focuses on the U.S. Supreme Court's recent decision in Decker v. Northwest Environmental Defense Center (Decker), (1) a case that Chris Winter (2) and I filed on behalf of plaintiff Northwest Environmental Defense Center in September 2006. The history of the case chronicles our efforts to gain more protection for forested streams by eliminating a critical misconception about how the Clean Water Act (3) applies to logging roads and the timber industry. Specifically, the U.S. Environmental Protection Agency (EPA), the scientific community, conservation groups across the country, and even many timber companies recognize that logging roads use pipes, ditches, and channels to convey harmful pollution to streams. Most also acknowledge that discharges from any pipe, ditch, or channel qualify as "point source" discharges that are subject to section 402 of the Clean Water Act and the National Pollutant Discharge Elimination System (NPDES) permit program. Unfortunately, for over thirty years, state and federal agencies, the timber industry, and many timber companies have asserted that EPA regulations redefine stormwater discharges from pipes and ditches along logging roads as nonpoint source pollution that is categorically excluded from section 402 of the Act. That error prevented EPA and state water quality agencies from using the various tools in section 402, including NPDES permits, to address logging road pollution. Starting in 2005, and building on the work of others who worked on the issue before us, Chris Winter, Mark Riskedahl, (4) and I began an effort to right that wrong.

2. LOGGING ROAD POLLUTION IS WIDESPREAD AND HARMFUL

   Logging roads are a widespread and very significant source of water pollution. (5) To ensure that logging roads continue to function dung wet weather, landowners and timber companies in the Pacific Northwest intentionally use pipes, ditches, and channels to move stormwater off the road and into streams. (6) Stormwater from logging roads is often heavily polluted with sediment generated by heavy logging trucks, which grind up gravel and other surface materials placed on the roads to facilitate industrial logging and timber hauling. (7) According to an EPA-commissioned report, "forestry-related sediment is a leading source of water quality impairment to rivers and streams nationwide." (8) Further, EPA recognizes that "up to 90% of the total sediment production from forestry operations" comes from logging roads and stream crossings. (9) According to EPA, "[s]tormwater discharges from logging roads, especially improperly constructed or maintained roads, may introduce significant amounts of sediment and other pollutants into surface waters and, consequently, cause a variety of water quality impacts." (10)

   Important ecological, economic, and social consequences stem from the sediment discharged from logging roads. Ecologically, fine and coarse-grained sediment loading degrades water quality and adversely affects fish, other aquatic species, and their habitat. (11) Sedimentation affects streams by reducing pool depth, altering substrate composition, reducing interstitial space, and causing braiding of channels, (12) all of which can adversely impact salmon and trout. Stream crossings also often prevent migrating fish from reaching spawning grounds. (13)

   Although EPA's Stormwater Rule Appeared to Require NPDES Permits for Logging Roads, Many incorrectly Viewed Stormwater From Pipes and Ditches Along Logging Roads as Nonpoint Source "Natural Runoff"

   Until EPA amended it last year, EPA's Stormwater Rule clearly appeared to require NPDES permits for point source stormwater discharges associated with industrial logging. (14) Generally speaking, the Clean Water Act requires NPDES permits for stormwater discharges that are 1) from point sources and 2) associated with an industrial activity listed in EPA's Stormwater Rule. (15) The Clean Water Act defines the term "point source" to mean "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch [or] channel ... from which pollutants are, or may be discharged." (16) And before listing the industries subject to the NPDES permit requirement, EPA's Stormwater Rule states: "The following categories of facilities are considered to be engaging in 'industrial activity' for purposes of [this regulation]...." The Stormwater Rule then included Standard Industrial Classification (SIC) 2411 (entitled "Logging") on the list of industries that require NPDES permits for stormwater discharges. (17) To eliminate doubt, the preamble to the rule states: "EPA intends that the list of applicable SICs will define and identify what industrial facilities are required to apply." (18)

   Notwithstanding those requirements, when we started our work in 2005, timber companies and landowners were not obtaining NPDES permits for their logging road pollution. EPA was also not regulating logging roads despite a 2003 court of appeals decision requiring EPA to evaluate whether it should be doing so. (19) Consequently, logging roads were a widespread and chronic source of water pollution that was degrading water quality and harming aquatic species.

   The crux of the problem was EPA's Silvicultural Rule. (20) EPA first promulgated the Silvicultural Rule in 1976 after a federal district court rejected EPA's attempt to exclude point-source discharges of stormwater associated with logging activities from the NPDES permit program. (21) The Silvicultural Rule requires NPDES permits for "silvicultural point sources" and it defines that term by listing four facilities--rock crushing, gravel washing, log sorting, and log storage facilities--that are subject to the NPDES permit requirement. (22) The rule then explains that the term "silvicultural point source" does not include "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...