40 CFR 122.27 (the EPA’s “silviculture rule”) exempts from NPDES permitting all discharges from silvicultural (forestry) activities such as thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance resulting from natural runoff.
But recent opinions from the U.S. Court of Appeals for the Ninth Circuit have restricted the interpretation of this exemption.
In Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176, the Northwest Environmental Defense Center brought suit against Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies for their failure to obtain permits for discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in the Tillamook State Forest. The Defendants argued that these discharges are “point source” discharges under the Clean Water Act (CWA) and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).
The Ninth Circuit agreed, filing their original opinion in the case on August 17, 2010. According to Perkins Coie’s Update on the case, the silviculture rule’s exemption for natural runoff “ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.”
On October 5, 2010, the defendants filed petitions (here and here) for rehearing and rehearing en banc, but just two weeks ago, the Ninth Circuit issued an order and opinion denying the petitions, and environmentalists everywhere rejoiced.