The Supreme Court had oral arguments last Monday (December 3) in Decker v. Northwest Environmental Defense Center, just after EPA the previous Friday (November 30) surprisingly issued a new rule clarifying that a NPDES permit is not required for stormwater discharges from logging roads.
EPA, in its statement on the new rule, says: “In Northwest Environmental Defense Center v. Brown (NEDC), 640 F.3d 1063 (9th Cir. 2011), a citizen suit was filed alleging violations of the Clean Water Act for discharging stormwater from ditches alongside two logging roads in state forests without a permit. The court held that because the stormwater runoff from the two roads in question is collected by and then discharged from a system of ditches, culverts, and channels, it is a point source discharge of industrial stormwater for which an NPDES permit is required. The EPA did not intend for logging roads to be regulated as industrial facilities. However, in light of NEDC, the EPA has revised 40 CFR 122.26(b)(14) to clarify the Agency’s intent. The EPA believes that stormwater discharges from forest roads, including logging roads, should be evaluated under section 402(p)(6) of the Clean Water Act [the "Phase II" Stormwater Rule] because the section allows for a broad range of flexible approaches that are better suited to address the complexity of forest road ownership, management, and use. The EPA has added language to existing stormwater regulations to clarify that, for the purposes of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities under Standard Industrial Code (SIC) code...
