Transcript Issues Related to Roads through Public Lands

Wireless Access Code:
9166703926
Rob Costello
Deputy Attorney General
Washington State Attorney General’s Office
July 2012
The Clean Water Act
The CWA forbids the unpermitted discharge of any
pollutant into navigable waters.
A “discharge” under the CWA is:
 “addition of any pollutant”
 “from any point source.”
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“Pollutant”
The CWA defines “pollutant” as “dredged spoil, solid
waste, … sewage, garbage, . . . chemical wastes,
biological materials, …heat, wrecked or discarded
equipment, rock, sand, cellar dirt, and industrial,
municipal, and agricultural waste. . . .”
“Point Source”
The CWA defines a “point source” as “any discernable,
confined and discrete conveyance, including, but not limited
to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, [or] container . . . from which pollutants are or may
be discharged.”
Administrative Exemption
Silvicultural Rule:
Adopted in 1976, the Silvicultural Rule excluded from
permit requirement, forest
“road construction and maintenance from which
there is natural runoff.”
Congressional Exemption
Stormwater:
Early attempts at administratively exempting certain
stormwater discharges were invalidated. In 1987,
Congress amended the CWA to provide that
only stormwater discharges “associated with industrial
activity . . .” would require a permit.
Ninth Circuit Rulings
1) Subject matter jurisdiction was appropriate – even
though:
(a) plaintiffs collaterally challenged EPA’s silvicultural rule,
(b) the challenge was well beyond the 120 day appeal
period for such challenges,
(c) EPA’s interpretation of the rule was pivotal, yet EPA was
not a party.
(cont’d)
2) Stormwater from logging roads that is collected by
ditches, channels, or culverts and then discharged into
streams is a point source for which a permit is required.
3) Logging roads fall under the “Phase I” permitting
structure for stormwater because logging roads are
“associated with industrial activity.”
Status
Congress – Passed a moratorium on need for a permit
(expires September 30, 2012) – other bills pending.
U.S. Supreme Court – Granted review on June 25, 2012 – to
be heard 2012 Term.
EPA – Intends to expediously amend stormwater regs –
discharges from logging roads – not “associated with
industrial activity.”
Wireless Access Code:
9166703926