The Agricultural Act of 2014 (better known as the Farm Bill) that was recently approved by the Congress and sent to President Obama includes a brief section that unambiguously prohibits the EPA from requiring a National Pollutant Discharge Elimination System (NPDES) permit for silvicultural activities.  The section would seem to bring closure—at least in terms of congressional intent—to a controversy that reached the Supreme Court.

EPA policy affirmed

In the case (Northwest Environmental Defense Center v. Brown), the Supreme Court reversed a ruling by the U.S. Court of Appeals for the 9th Circuit that nullified EPA’s decades-long policy of not requiring NPDES permits for stormwater discharges from pipes, ditches, and channels along logging roads.  It had been EPA’s position for more than 30 years that the Clean Water Act intended that NPDES permitting apply to stormwater discharges associated with manufacturing, processing, or raw materials storage areas at an industrial plant. 

The Agency did not interpret this type of activity to include channeled runoff from logging roads.  The 9th Circuit disagreed, holding that pipes, ditches, and channels were conveyances under EPA’s Silviculture Rule.  The Supreme Court reversed, upholding EPA’s interpretation that the conveyances at issue are directly related to the harvesting of raw materials, not to manufacturing, processing, or raw materials storage areas at an industrial plant. 

State programs recognized

Written by Justice Kennedy, the decision noted that the EPA has been consistent in its view that the types of discharges at issue do not require NPDES permits, that the states should exercise authority with respect to stormwater runoff from logging roads, and that any additional federal regulations would be duplicative or counterproductive, particularly when a state has thoroughly addressed the issue.  Even with this decision, the logging industry felt it would face similar legal challenges and requested that its supporters in Congress resolve the matter through legislation.

Section 12313 of the Farm Bill appears to do just that by amending CWA Section 402(l).  The section states:
“The Administrator shall not require a permit under this section nor directly or indirectly require any State to require a permit under this section for a discharge from runoff resulting from the conduct of the following silviculture activities conducted in accordance with standard industry practice: 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.”

‘Certainty’ established

Industry was quick in welcoming the language.

“We thank Congress for inclusion of the forest roads provision that takes discharge permits and citizen lawsuits off the table,” said Dave Tenny, president and CEO of the National Alliance of Forest Owners. “Through this legislation the U.S. Environmental Protection Agency can and should continue to use state developed Best Management Practices for forest roads and forest management under the Clean Water Act as it has successfully done for the past 38 years.”

“The final language in the bill to preserve the treatment of forest roads as non-point sources helps bring needed certainty to the forestry community,” commented the American Forest & Paper Association.