In a decision issued today, the Ninth Circuit ruled that logging road run-off that is channeled by a system of ditches and culverts into navigable waters is point-source pollution regulated under the National Pollution Discharge Elimination System, which requires permits to limit the amount of pollution discharged to meet water quality standards. Although the case involved logging roads on Oregon’s Tillamook State Forest, its reasoning applies equally to the national forest system because the Clean Water Act directs that federal agencies be treated just like all others when it comes to water pollution.
This decision builds upon an earlier ruling that subjected pesticide spraying from airplanes to NPDES permitting. The ruling invalidates EPA’s long-standing silvicultural exemption from point source permitting.
Several responses to this ruling are possible. Here are my guesses. Will the State of Oregon appeal to the U.S. Supreme Court? Yes. Will the Court accept cert? No. Will EPA and/or its delegated state regulatory agencies seek to issue programmatic, general permits for logging road-related sediment discharge, much like it does for certain classes of in-stream gold mining? Yes (the court invites EPA to do so). Will forest road owners face increased scrutiny from citizen Clean Water Act lawsuits? Duh! Will road engineers start designing outsloping roads without culverts and ditches? Perhaps so.
Other speculations welcome.