EPA Announces Intent To Propose Revised Logging Road Storm Water Regulations

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...