Federal permits not required for stormwater discharges from forest roads

The United States Supreme Court has ruled that the Clean Water Act does not require permitting of stormwater discharges from forest roads (Decker v. NEDC). 

This ruling upholds a longstanding policy of the United States Environmental Protection Agency (EPA) and reverses an earlier ruling by the Ninth Circuit Court of Appeals. The Ninth Circuit had held that discharges of stormwater from two logging roads in Oregon must be permitted because they are both “point sources” and “associated with industrial activity.” Under EPA regulations, logging roads are neither. The Supreme Court upheld EPA’s position that discharges from logging roads are not associated with industrial activity and reversed the Ninth Circuit’s ruling on that basis. The Supreme Court did not reach the question of whether logging roads are point sources.

In its ruling, the Supreme Court commented on the practical reality that efforts to control stormwater from logging roads in Oregon have been underway for many years.

“The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best
practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff before it enters rivers and streams, Ore. Admin. Rule 629– 625–0330(4) (2012); requiring logging companies to con­struct roads using surfacing that minimizes the sediment in runoff, Rule 629–625–0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629–625–0700(3). Oregon has invested substantial time and money in estab­lishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work ‘in consultation with State and local officials’ to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6).”


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