05.24.2012

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Updates

On May 23, 2012 the Environmental Protection Agency (the "EPA") published a notice of intent ("NOI") in the Federal Register to propose revisions to its regulations relating to storm water discharges from logging roads.  77 Fed. Reg. 30,473 (May 23, 2012).  The EPA is also considering adopting further regulatory and nonregulatory approaches to address storm water runoff from forest roads generally.

The NOI describes the steps the EPA intends to take to address the court's conclusion in Northwest Environmental Defense Center ("NEDC") v. Brown, 640 F.3d 1063 (9th Cir. 2011), that certain logging road discharges of storm water require a National Pollutant Discharge Elimination System ("NPDES") permit under Section 402 of the Clean Water Act.  The NOI also addresses related discharges subject to the partial remand under Environmental Defense Center, Inc. v. U.S.  EPA, 344 F.3d 832, 863 (9th Cir. 2003).  Specifically, the EPA is announcing its proposal to revise its Phase I storm water regulations (40 C.F.R. § 122.26) to make clear that storm water discharges from logging roads are not included in the definition of “storm water discharge associated with industrial activity.”

The EPA announcement indicates that this revision would remove any obligation for an owner or operator of a logging road that has a discharge of storm water to waters of the United States to seek Clean Water Act permit coverage for the discharge under either the EPA's Stormwater Multi-Sector General Permit for Stormwater Discharges or an individual NPDES permit.  The EPA stated that it is aware that a congressional moratorium on NPDES permitting of some logging roads is set to expire on September 30, 2012, and that it intends to move expeditiously to complete this regulatory revision.  The timing of the NOI closely coincides with the impending expected submission by the solicitor general of a brief requested by the U.S. Supreme Court regarding whether certiorari review of the NEDC v. Brown decision should be granted.

The NOI provides an overview of the complex nature of the nation’s federal, state, local, tribal and privately owned forests with specific emphasis on the varied nature of the forest road systems across the United States.  The NOI states that “the networks of forest roads on federal land are vast by any measure, with total lengths on the order of tens of thousands to hundreds of thousands of miles.  The networks in other publicly-owned forests, tribal forests, and private forests have not been fully catalogued, and the density and condition of forest roads on these lands, as with the federal lands, varies widely.”  The NOI likewise explains that the impacts of forest roads on streams, rivers, and downstream water bodies "vary depending on site-specific factors."

In addition to the proposed revisions to its Phase I storm water regulations, the EPA is proposing to rely on its authority under Section 402(p) of the Clean Water Act to consider adopting a wide range of regulatory and nonregulatory approaches suitable to address storm water discharges originating from the complex and diverse forest road universe.  The EPA believes such approaches will provide for flexibility and prioritization and will allow it to "focus on the subset of forest roads with stormwater discharges that cause or contribute to water quality impacts."  Under Section 402(p), the EPA "could build upon or defer to other federal, state, tribal, local, and voluntary programs."

Throughout its NOI, the EPA emphasizes that it will rely on best management practices ("BMP") that have already been established by federal, state, tribal, and local authorities as starting points for considering further regulations.  The EPA recognizes that one-size-fits-all approaches may not be appropriate for addressing the multiplicity of issues and situations within and across states.

The EPA requests comments on potential approaches for addressing storm water discharges from forest roads.  The EPA also seeks examples of successful BMP-based state, tribal and voluntary certification programs for managing storm water discharges from forest roads:  how these programs are implemented; how program accountability is ensured; the costs of implementing these programs, including the costs incurred by the owners or operators of forest roads as well as the costs incurred by the organizations responsible for implementation and enforcement; the demonstrable successes of these programs; and the lessons learned from implementing them.  The EPA is seeking input on these issues before taking additional action to address storm water discharges from forest roads.

Information and instructions for submitting comments can be found within the NOI.  Comments on the NOI are due by June 22, 2012.

© 2012 Perkins Coie LLP