An Argument For Placing Logging Roads Under the NPDES Program

Kevin Boston & Matt Thompson *

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Introduction

Recent judicial decisions addressing the impact of forest management on water quality suggest that EPA’s clarification of regulations under the Clean Water Act (CWA) may become increasingly important. Courts currently must decide whether water pollution from forest roads and their drainage systems meets the criteria for point source pollution, rendering such sources subject to National Pollution Elimination Discharge System (NPDES) permit requirements under the CWA. Two federal district courts recently reached conflicting decisions regarding this very issue. In Environmental Protection Information Center v. Pacific Lumber Co. (“EPIC”), the court found that ditches and culverts associated with a forest road drainage system fall within the CWA’s point source category.[1] However, in Northwest Environmental Defense Center v. Brown (“NEDC”), a case now on appeal in the Ninth Circuit, another district court reached the opposite conclusion.[2] Differences in the rulings center largely on whether the disputed pollutant—fine sediment generated from forest roads—is discharged into streams naturally or as a result of human activity.[3]