Water Quality Permits Looming for Timber Harvesting Operations

On October 14, 2003, the United States District Court for the Northern District of California issued an opinion in the case of Environmental Protection Information Center v. Pacific Lumber Company. In that case, Judge Marilyn Hall Patel held that where surface runoff from lands with timber operations is channeled into culverts, ditches, pipes and similar conveyances, the runoff becomes regulated as a point source discharge. The opinion has potential ramifications for the timber industry and for other industries whose surface runoff is currently unregulated by Clean Water Act discharge permit requirements.

The plaintiff environmental groups in this case charged that Pacific Lumber violated (and that EPA failed to enforce) Clean Water Act requirements protecting the local creek from contaminated runoff caused by logging operations. Under the Clean Water Act, point sources of contamination are subject to strict permitting and discharge limitation requirements. Generally speaking, nonpoint sources are not subject to these requirements.

Relying on Clean Water Act statutory intent, the court reinterpreted the EPA's blanket regulatory permitting exemption for timber harvesting operations saying that stormwater runoff collected in ditches, culverts, channels and other conveyances constitutes point sources requiring a permit. The court left the regulatory language itself intact, determining only that it had been misinterpreted and misapplied by Pacific Lumber and EPA.

It is too soon to tell if this decision will, if appealed, withstand appellate review. EPA may also, at least for the near future, not apply this decision outside of California.

The decision does, however, indicate the extent to which nonpoint source exemptions from regulatory requirements are under pressure. For example, in 2003, challenges to EPA's requirement that nonpoint sources are subject to Total Maximum Daily Load (TMDL) limits for regulated pollutants failed. The Clean Water Act requires TMDL's be set for water bodies that do not meet state water quality standards. The Ninth Circuit Court of Appeals upheld the TMDL requirement for nonpoint sources in Pronsolino v. Nastri and the U. S. Supreme Court declined to review this decision on June 16, 2003. The EPA and states now have a green light to establish regulatory schemes to control pollution from nonpoint sources discharging into waterbodies with TMDL limits. We expect to see continued efforts to bring nonpoint water pollution within regulatory controls.