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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 private forests have
not been fully catalogued, and the density and condition of forest
roads on these lands, as with the federal lands, varies
widely." The NOI likewise explains that the impacts of forest
roads on streams, rivers, and downstream water bodies "vary
depending on site-specific factors."
In addition to the proposed revisions to its Phase I storm water
regulations, the EPA is proposing to rely on its authority under
Section 402(p) of the Clean Water Act to consider adopting a wide
range of regulatory and nonregulatory approaches suitable to
address storm water discharges originating from the complex and
diverse forest road universe. The EPA believes such approaches will
provide for flexibility and prioritization and will allow it to
"focus on the subset of forest roads with stormwater
discharges that cause or contribute to water quality impacts."
Under Section 402(p), the EPA "could build upon or defer to
other federal, state, tribal, local, and voluntary
programs."
Throughout its NOI, the EPA emphasizes that it will rely on best
management practices ("BMP") that have already been
established by federal, state, tribal, and local authorities as
starting points for considering further regulations. The EPA
recognizes that one-size-fits-all approaches may not be appropriate
for addressing the multiplicity of issues and situations within and
across states.
The EPA requests comments on potential approaches for addressing
storm water discharges from forest roads. The EPA also seeks
examples of successful BMP-based state, tribal and voluntary
certification programs for managing storm water discharges from
forest roads: how these programs are implemented; how program
accountability is ensured; the costs of implementing these
programs, including the costs incurred by the owners or operators
of forest roads as well as the costs incurred by the organizations
responsible for implementation and enforcement; the demonstrable
successes of these programs; and the lessons learned from
implementing them. The EPA is seeking input on these issues before
taking additional action to address storm water discharges from
forest roads.
Information and instructions for submitting comments can be
found within the NOI. Comments on the NOI are due by June 22,
2012.
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