EPA’s proposal to clarify the applicability of Clean Water Act (CWA) permitting to stormwater discharges from logging roads may be having the opposite effect, notes the American Forest & Paper Association (AF&PA). 
AF&PA’s concern derives from a case that the U.S. Supreme Court will hear in December 2012, in which industry is seeking reversal of an opinion issued in Northwest Environmental Defense Center v. Brown (NEDC).  In that case, the U.S. Court of Appeals for the 9th Circuit overturned a district court decision by asserting that stormwater discharges from logging roads require CWA national pollutant discharge elimination system (NPDES) permits.   The 9th Circuit remanded the case to the lower court.  According to the AF&PA, the EPA should not move forward with any rulemaking until the Supreme Court decides whether to back or oppose the 9th Circuit.
Different roads
According to EPA’s proposal, nonpoint source logging roads should be excluded from permitting because they present a complex array of ownership, management, and use conditions that are better controlled through best management practices and other flexible approaches.   The EPA refers to immediate access roads that appropriately require NPDES permits because they are exclusively used by an industrial facility.  On the other hand, the industrial facility may happen to use public access roads that have multiple other purposes, including recreation and transportation, and thus may not provide immediate access to an industrial site.  Public access roads used by loggers are termed “logging roads.”  

Flexible approaches

               In its proposal, the EPA states that stormwater discharges from logging roads are better addressed through CWA Section 402(p)6), which allows the Agency to exercise flexibility in issuing regulations and does not require the use of NPDES permits or any specific regulatory approach.  The section states that the regulations “shall establish priorities, establish requirements for state stormwater management programs, and establish expeditious deadlines” and may include “performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.”

               “This flexibility is unique to stormwater discharges and is different than the treatment of stormwater discharges listed in Section 402(p)(2)(B) of the Act, which requires a permit for a stormwater discharge ‘associated with industrial activity,’” states the Agency.

Legal uncertainty
The AF&PA supports the Agency’s endorsement of best management practices rather than permitting to control stormwater discharges from logging roads.  But the association is concerned that even if the EPA finalizes its rule before the Supreme Court’s decision, it will take months if not years to be implemented, and the rule will likely be challenged in court, “continuing the legal uncertainty.” 
The Supreme Court will issue its decision in NEDC no later than June 2013. 
EPA’s proposed rule to clarify that logging roads are not subject to NPDES permitting was published in the September 4, 2012, FR.