Logging Road Run-Off is Point Source Pollution


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.

12 Comments

  1. While I am a big fan of water quality, what differentiates a “logging road” from a “wilderness access road”, or other backcountry usage? I’ve worked on a great many different Forests and Ranger Districts, and have seen much inconsistency and questionable ways of dealing with road runoff. In SoCal, they seem to love to push these long ditches out, far away from the roadbed. I observed that they seem to want to make sure the water on the roads get into established gullies. I’ve also seen installed drains that don’t actually drain any water. Just because road engineers require all sorts of mathmatical expertise and design skills, that doesn’t mean the rest of us can’t critique how their work isn’t effective or “eco-friendly”.

    I’m also a big fan of outsloped roads but, some of those should be closed during the winter (a good thing, as well). Merely gating roads would yield some water quality benefits.

    Now, when will the EPA step in and consider “let-Burn” fires as pollution sources, too?!?

  2. Back when I worked more in the South, I wondered what differentiated a logging road from a farming road, or a rural resident “going to town” road. Will this have implications for all rural roads?

  3. For those unfamiliar with the Clean Water Act and the Supreme Court’s recent rulings, here’s some further explanation of what this case means.

    The CWA bans discharges of pollutants from point sources into waters of the United States. The Supreme Court, in Rapanos v. U.S., a case involving filling of ephemeral wetlands miles distant from the nearest permanent body of water, ruled that “water of the United States” means “relatively permanent body of water connected to traditional interstate navigable waters.” (emphasis added). In the case of a wetland, there must be a “continuous surface connection” with the waters of the United States.

    Thus, Smokey is incorrect — the Clean Water Act bars unpermitted point source discharges into most perennial creeks, streams and rivers because most such waters are connected downstream to a navigable waterway. It doesn’t matter how far removed that connection is, so long as it is a continuous, surface connection.

    There is nothing particularly remarkable about this decision. Municipalities, industries of every type, highway construction — you name it — they’ve all been regulated for decades by the CWA’s point source permitting rules. The timber industry got a sweetheart exemption from EPA early on, pushed (ironically) by the Oregon State Board of Forestry. Now the chicken has come home to roost.

  4. Andy- thanks for the explanation. For my further learning, I’ve always been unclear on whether the “industry” part is the ownership of the land, or the purpose of the road.

    Example 1. timber industry owns a large piece of land and builds roads to make a piece they are selling for development more saleable (not forestry but owned by industry)

    Example 2. farmer x sells some timber from a woodlot. Timber industry needs to get a piece of equipment in, so builds a road (forestry road but land not owned by industry).

  5. Sharon — The purpose underlying the discharge is irrelevant under the CWA. One cannot discharge pollutants from a pipe into water without a permit for any reason — industrial, non-industrial, municipal, recreational, or whatever.

    Here’s a story about an EPA general discharge permit for pesticide applications. This general permit resulted from circuit court opinions, like this one, that determined pesticides are pollutants that when sprayed into waterways without a permit violate the CWA.

    Here’s the EPA’s 2010 proposed general discharge permit for pesticide spraying. We are likely to see a similar approach taken for discharges from forest road drainage structures.

  6. Andy, You are so far removed from reality my friend it’s funny. Are you telling me that every perennial stream in the US is under the juristition of the US Amry Corp? Really? Come on…try to argue that point. Oh yeah, and please let me know of any culvert installed on a headwater stream needing a 404. Come on…this will be good.

  7. Smokey — The Army Corps regulates dredge and fill. The EPA (or a delegated state agency) regulates discharge of pollutants from point sources. And, yes, if the perennial stream is connected by surface flow, no matter how far distant, from a traditional navigable waterway, the stream is a water of state and protected by the Clean Water Act. Read the Rapanos case, authored by Justice Scalia.

    EPA’s issuance of point source discharge permits for forest road pollution will, in some instances, also involve ESA consultation with Fish and Wildlife Service and/or NOAA-Fisheries to conserve threatened and endangered species.

  8. Andy- thanks for the information. I had to break down and read the decision to get the point of the “collection” concept. So please check my logic. So if any old NFS road (to trailhead, campground, whatever) has one of these “systems of ditches and culverts,” then it would need a permit?

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