On August 17, 2010, the U.S. Ninth Circuit Court of Appeals ruled in an Oregon case that the Clean Water Act requires permits for polluted storm water that runs off logging roads in the Tillamook State Forest.

The decision is a result of a lawsuit brought by the Northwest Environmental Defense Center (NEDC) in 2006 which alleged that the Oregon Department of Forestry had been ignoring permitting requirements for years while increasing the level of harvest in the Tillamook.

In a news release, the NEDC stated, "In the western United States, logging roads are a primary source of sediment pollution. Many logging roads are intentionally designed to use ditches, channels and culverts to dump polluted storm water directly into nearby streams."

The NEDC explained their reasons for the law suit. "Logging road pollution degrades water quality and contributes to the destruction of salmon and their habitats; it can dramatically harm salmon and steelhead by clogging their gills, smothering spawning beds and killing prey insects."

Danny Dructor of Hemphill, Texas, Executive Director of the American Logging Council told the Piney Woods Journal, "This is not exactly the same TMDL issue that the forest industry experienced before. The issue in question stems from a Ninth Circuit Federal Court of Appeals ruling in favor of environmental groups. The issue ruled on was that the Environmental Protection Agency (EPA) does not have the authority to allow any exemptions from the Clean Water Act, an in particular on forest roads," Dructor explained. "As you know, the forest industry has enjoyed exemptions from silvicultural activities up to this point. The three judge panel ruled that water from silvicultural operations that is diverted through a ditch and/or culvert, and then entering into a stream is subject to NPDES (Non Point Discharge Elimination Systems)," Dructor continued.

"Currently the ruling only applies to States under the Ninth Circuit's jurisdiction," Dructor pointed out. "But we can expect that those in the environmental community will test the ruling, if it is allowed to stand, in other regions of the country."

"The American Logging Council has joined a host of other organizations requesting an 'en banc' review of the decision and are currently waiting for that ruling," Dructor noted.

Judge W. Fletcher, Circuit Judge, in writing the opinion on this case pointed out, "The Plaintiff contends that Defendants have violated the Clean Water Act and its implementing regulations by not obtaining permits from the Environmental Protection Agency for storm water, largely rainwater, runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers."

"The Plaintiff contends that these discharges are from 'point sources' within the meaning of the Clean Water Act and that they therefore require permits under the National Pollution Discharge Elimination System (NPDES)," Judge Fletcher continued in the Court's decision.

"The district court," Judge Fletcher wrote, "concluded that the discharges are exempted from the NPDES permitting process by the Silvicultural Rule, 40 S 122.27, promulgated under the Clean Water Act to regulate discharges associated with silvicultural activity."

"The district court did not reach the question whether the discharges are exempted by amendments to the Clean Water Act made in 1987," Judge Fletcher noted. "We reach both questions and conclude that the discharges require NPDES permits."

Congress exempted some water pollution sources from the point source definition in the original 1972 Clean Water Act, and was unclear on the status of some other sources. These sources were therefore considered to be "nonpoint sources'' that were not subject to the permit program. Agricultural storm water discharges, irrigation return flows, and rainwater on silvicultural locations were specifically exempted from permit requirements.

In the Water Quality Act of 1987, Congress responded to the storm water issue by requiring that industrial storm water dischargers and municipal separate storm sewer systems obtain NPDES permits, by specific dates. To date more than 600,000 facilities around the country have obtained NPDES permits.

However, the permit exemption for agricultural and silvicultural discharges continued, but Congress created a nonpoint source pollution demonstration grant program at EPA to expand research and development of nonpoint controls and management practices.

The NPDES permits are governed by the Federal Environmental Agency but are usually administered by the State Department of Environmental Quality (DEQ). Under section 309 of the CWA, the EPA can issue administrative orders against violators, and seek civil and criminal penalties when necessary. The permit agencies, EPA and DEQ must provide notice to the public of pending permits and provide an opportunity for public comment.

In its Oregon suit, the NEDC alleged that, "Timber hauling on the logging roads is a major source of the sediment that flows through the storm water collection systems. Logging trucks passing over the roads grind up the gravel and dirt on the surface of the road."

"Small rocks, sand, and dirt are then washed into the into the collection system and then discharged directly into the streams and rivers."

In its August 17, 2010 news release, the NEDC attorney, Paul Kampmeier with the Washington Forest Law Center proclaimed, "This is a tremendous victory for Oregon's streams. This is an important step toward gaining meaningful protection for Oregon's clean water, rivers and streams, and wildlife habitat."

The NEDC attorney further proclaimed, "This ruling will have impacts throughout the West. The timber industry has tried to evade the reach of the Clean Water Act's permit program for years. This decision will result in permits for logging roads on federal and private land as well, which will improve water quality throughout the region."

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