Overview

Last August in Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176, the U.S. Court of Appeals for the Ninth Circuit severely limited the application of the Environmental Protection Agency's ("EPA") Silviculture Rule, 40 C.F.R. § 122.27. See previously published Perkins Coie Client Update. On May 17, 2011, the court denied a petition for rehearing and rehearing en banc, leaving its prior construction of the Rule in place.

The Silviculture Rule exempted from the National Pollution Discharge Elimination System's (NPDES) permitting requirements certain "point source" silviculture (forestry) activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is "natural runoff." Under the Rule, the EPA did not require permitting for discharges of pollutants from ditches, culverts and channels that collect stormwater runoff from logging roads.

The three-judge panel's original opinion in NEDC v. Brown was reported on August 17, 2010, and petitions for rehearing and rehearing en banc were filed on October 5, 2010. In an amicus brief, the United States contended that subject matter jurisdiction was improper. That issue had not been discussed in the August opinion. In a replacement opinion, NEDC v. Brown, No. 07-35266, 2011 WL 1844060, filed May 17, 2011, the Ninth Circuit determined that subject matter jurisdiction was in fact proper. The court also reiterated its previous analysis of the Silviculture Rule. Finally, the court denied a petition for rehearing and rehearing en banc.

However, the court did concede that the Silviculture Rule should be construed as consistent with the Clean Water Act ("CWA") so long as the "natural runoff" remains natural. That is, the exemption ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a "discernible, confined and discrete conveyance" and discharged into the waters of the United States. This two-part test may allow some logging operations to remain exempt where the "natural runoff" is not discharged into streams and rivers.

Practical Issues for Loggers and Forest Owners:

  • The Ninth Circuit panel decision remains subject to further appeal to the U.S. Supreme Court and no apparent injunction has yet been associated with the decision. Counsel should be advised to communicate with the EPA to keep abreast of developments in this area.
  • One potential outcome of this decision is further rulemaking by the EPA to apply a general and individual NPDES permitting scheme such as what is presently applicable to stormwater discharges from construction or industrial sites or municipal road stormwater collection and drainage systems. If a general permit similar to that currently in place for smaller construction and industrial sites is made available, it could require the filing of an electronic or paper "Notice of Intent" for road construction, maintenance or transport operations, together with a "Stormwater Pollution Prevention Plan" that must be prepared and implemented. Whatever form the permitting scheme may take, it is likely to increase the operational and compliance costs for landowners and operators.
  • The ultimate scope of the decision's impact could extend beyond commercial logging to any roads that are constructed, maintained or used for thinning, prescribed burning, or other forest management and treatment activities, and could have national implications, affecting areas outside of the nine Western states within the Ninth Circuit's jurisdiction—Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
  • If logging and other forest management roads and operations currently within the scope of the Silviculture Rule are placed within the NPDES permitting regime, it is possible that the CWA's "Total Maximum Daily Load" allocations for various stream drainages, "anti-degradation" policy, and other NPDES requirements will be affected.
  • Contracts between loggers and landowners should be reviewed for covenants and indemnities relating to regulatory compliance. Careful consideration should be given to any potential impacts on compliance costs and performance timelines and milestones that will result from the additional regulatory burdens and associated delays.
  • Coordination efforts between state regulatory authorities and the EPA will have to be negotiated to ensure that state and federal stormwater requirements do not conflict.
  • It is not yet known to what extent NPDES permits will be required for the many thousands of miles of existing logging roads in Oregon and other states.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.