Skip to content

Ninth Circuit Says Forest Road Stormwater Discharge Violates Clean Water Act

August 25, 2010

In a decision long-awaited by environmental groups, the timber industry, state and federal land managers and the U.S. Environmental Protection Agency (“EPA”), the Ninth Circuit ruled Tuesday, August 17, that ditches, culverts and channels found on forest roads used to collect and discharge stormwater are point sources that must be regulated under the federal Clean Water Act (“CWA”).  If the decision stands, the EPA will be forced to devise a permitting process for all ditches, culverts and channels for forest roads on both public and private lands.  The full decision can be found here.

The case dates back to 2006, when the Portland, Oregon-based non-profit group Northwest Environmental Defense Center (“NEDC”) brought suit against the Oregon Board of Forestry, Tillamook County and several private timber companies who own or operate on forestland in Tillamook County.  NEDC alleged that runoff discharged into Tillamook County streams and rivers from ditches, culverts and channels on forest roads owned, used, and/or maintained by these defendants violated the CWA because the discharges were not authorized by permits issued by the EPA.

The public and private defendants, as well as the EPA, all maintained that the ditches, culverts and channels were exempt from CWA permitting requirements under the EPA’s “Silvicultural Rule” and the District Court agreed, dismissing the case on March 1, 2007.  NEDC appealed and, over three years later, the Ninth Circuit reversed.  The court held that—regardless of the EPA’s rule exempting silvicultural stormwater discharges—that, under the plain terms of the CWA itself, the ditches, culverts and channels required a CWA permit and that Congress’s subsequent amendments to the statute creating special provisions for stormwater regulation did not exempt them from this requirement.

That the Ninth Circuit ruled that the stormwater collection systems must be regulated as “point sources” under the CWA was somewhat unsurprising as the CWA broadly defines that term to include any “discernible, confined and discrete conveyance, including but not limited to any pipe, ditch [or] channel….”  What is more controversial is the court’s decision that amendments to the CWA passed by Congress in 1987, which specify that CWA permits are only required for discharges associated with “industrial activity,” do not exempt stormwater discharges from forest roads.  The Ninth Circuit reasoned that, despite the fact that forest roads are used for multiple recreational and other uses, their primary purpose is logging.  The court also found that logging sites qualify as “industrial facilities” with little explanation.  Early indications are that affected timber companies and organizations are likely to appeal.  In an interview with Oregon Public Broadcasting, Tom Partin, president of the American Forest Resources Council, expressed serious dissatisfaction with the ruling.  OPB reports that the Oregon Forestry Board is still analyzing the decision.

If the ruling stands, the EPA, and affected private, state and federal land managers, will likely have a long and controversial road ahead for devising a permitting scheme for stormwater discharges from forest roads.  If CWA water quality standards are linked with use, design and maintenance of forest roads, not only is it likely that government agencies and the timber industry will face significant financial and administrative challenges, it is also possible that the public could see further road closures and access restrictions on both public and private forests.

%d bloggers like this: