EPA issues final rule on stormwater from logging roads

The US Environmental Protection Agency has published a final rule titled Revisions to Stormwater Regulations to Clarify that an NPDES Permit Is Not Required for Stormwater Discharges from Logging Roads (Federal Register December 7, 2012, p. 72970). This rule affirms and clarifies EPA’s longstanding position that the Agency did not intend to regulate logging roads as industrial facilities when it promulgated its Phase 1 stormwater regulations. The preamble to this final rule includes the following observations.

“The EPA is promulgating this final rule to address the stormwater discharges identified under Northwest Environmental Defense Center v. Brown,640 F.3d 1063 (9th Cir. 2011) (NEDC).”

“The final rule clarifies that, for the purposes of assessing whether stormwater discharges are ‘associated with industrial activity,’ the only facilities under SIC code 2411 that are ‘industrial’ are: rock crushing, gravel washing, log sorting, and log storage. This clarifies, contrary to the Ninth Circuit’s decision in NEDC, that discharges of stormwater from silviculture facilities other than the four specifically named silviculture facilities identified above do not require an NPDES permit.1

 “1 This rulemaking responds to the uncertainty created by the Ninth Circuit’s holding in NEDC that certain channeled discharges of stormwater from logging roads constitute point source discharges, bringing them within the Section 402 NPDES permitting framework. This final rule, by clarifying what constitutes a discharge ‘associated with industrial activity,’ makes clear that such discharges do not require NPDES permits even if they are point source discharges. We note that the Supreme Court has granted review of the NEDC case for the October 2012 term.”