Enough Is Enough! Stormwater Discharged from Man-Made Pipes, Ditches, and Channels along Logging Roads Is Not Nonpoint Source "Natural Runoff"

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I. INTRODUCTION  II. LOGGING ROAD POLLUTION Is WIDESPREAD AND HARMFUL      Although EPA's Stormwater Rule Appeared to Require NPDES     Permits for Logging Roads, Many incorrectly Viewed Stormwater     From Pipes and Ditches Along Logging Roads as Nonpoint Source     'Natural Runoff'.  III. THE LAWSUIT AND COURT PROCEEDINGS       What Did the Supreme Court Do With the Point Source Issue?  IV. WHERE DO THINGS STAND NOW? 

I. INTRODUCTION

This issue of Environmental Law focuses on the U.S. Supreme Court's recent decision in Decker v. Northwest Environmental Defense Center (Decker), (1) a case that Chris Winter (2) and I filed on behalf of plaintiff Northwest Environmental Defense Center in September 2006. The history of the case chronicles our efforts to gain more protection for forested streams by eliminating a critical misconception about how the Clean Water Act (3) applies to logging roads and the timber industry. Specifically, the U.S. Environmental Protection Agency (EPA), the scientific community, conservation groups across the country, and even many timber companies recognize that logging roads use pipes, ditches, and channels to convey harmful pollution to streams. Most also acknowledge that discharges from any pipe, ditch, or channel qualify as "point source" discharges that are subject to section 402 of the Clean Water Act and the National Pollutant Discharge Elimination System (NPDES) permit program. Unfortunately, for over thirty years, state and federal agencies, the timber industry, and many timber companies have asserted that EPA regulations redefine stormwater discharges from pipes and ditches along logging roads as nonpoint source pollution that is categorically excluded from section 402 of the Act. That error prevented EPA and state water quality agencies from using the various tools in section 402, including NPDES permits, to address logging road pollution. Starting in 2005, and building on the work of others who worked on the issue before us, Chris Winter, Mark Riskedahl, (4) and I began an effort to right that wrong.

II. LOGGING ROAD POLLUTION IS WIDESPREAD AND HARMFUL

Logging roads are a widespread and very significant source of water pollution. (5) To ensure that logging roads continue to function dung wet weather, landowners and timber companies in the Pacific Northwest intentionally use pipes, ditches, and channels to move stormwater off the road and into streams. (6) Stormwater from logging roads is often heavily polluted with sediment generated by heavy logging trucks, which grind up gravel and other surface materials placed on the roads to facilitate industrial logging and timber hauling. (7) According to an EPA-commissioned report, "forestry-related sediment is a leading source of water quality impairment to rivers and streams nationwide." (8) Further, EPA recognizes that "up to 90% of the total sediment production from forestry operations" comes from logging roads and stream crossings. (9) According to EPA, "[s]tormwater discharges from logging roads, especially improperly constructed or maintained roads, may introduce significant amounts of sediment and other pollutants into surface waters and, consequently, cause a variety of water quality impacts." (10)

Important ecological, economic, and social consequences stem from the sediment discharged from logging roads. Ecologically, fine and coarse-grained sediment loading degrades water quality and adversely affects fish, other aquatic species, and their habitat. (11) Sedimentation affects streams by reducing pool depth, altering substrate composition, reducing interstitial space, and causing braiding of channels, (12) all of which can adversely impact salmon and trout. Stream crossings also often prevent migrating fish from reaching spawning grounds. (13)

Although EPA's Stormwater Rule Appeared to Require NPDES Permits for Logging Roads, Many incorrectly Viewed Stormwater From Pipes and Ditches Along Logging Roads as Nonpoint Source "Natural Runoff"

Until EPA amended it last year, EPA's Stormwater Rule clearly appeared to require NPDES permits for point source stormwater discharges associated with industrial logging. …