UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

20460

The Honorable Kurt Schrader House of Representatives Washington, DC 20515 Dear Congressman Schrader: Thank you for your May 23, 2011, letter regarding the August 17, 2010, ruling of the U.S. Court of Appeals for the Ninth Circuit in Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176 (9th Cir. 2010) regarding long standingNational Pollutant Discharge Elimination System (NPDES) regulations effecting the management of stormwater from forest roads. The Court in NEDC v. Brown held that stormwater runoff from certain logging roads that is collected by and discharged from a system of ditches, culverts and channels is a point source for which an NPDES permit is required. The decision applies to those forest roads that (1) are primarily used for logging; and (2) discharge channeled stormwater from a system of ditches, culverts or channels to a water of the United States. Certain activities and features associated with loggiiig, inciudirg roads aid road diths,ciate opportunities for water channeling and flow diversion, which, if not properly controlled and directed, can generate erosive flows. Such flows can degrade aquatic ecosystems by increasing levels of fine sediment introduced to streams and by altering natural streamfiow patterns. Increased sediment delivery and stream turbidity adversely affects the survival of dozens of sensitive aquatic biota such as salmon, trout, other native fishes, amphibians and macroinvertebrates. Roads are generally considered to be the major source of sediment to water bodies from harvested forest lands. They have been found to contribute up to 90 percent of the total sediment load from forestry activities.1 Properly locating, designing and maintaining logging roads can significantly reduce environmental threats - and remove roads from NPDES jurisdiction, as interpreted in NEDC v. Brown. Many logging road operators already employ these practices. Historically, logging roads were intentionally designed to direct stormwater into streams via ditches, channels, and culverts. More recent design standards seek to direct drainage onto porous forest soils for infiltration, so they do not discharge into waters of the United States. The NEDC v. Brown decision does not encompass roads that adhere to such standards. EPA continues to meet with stakeholders to discuss long-term options. Discussions with stakeholders have been and will continue to be invaluable in assisting the EPA to respond to NEDC v. Brown. Leveraging stakeholders' extensive expertise, the EPA will seek to design a response that minimizes
1

United States Environmental Protection Agency, 2005, National Management Measures to Control Nonpoint Source Pollution from Forestry, EPA-841-B-05-O01, p. 2-4.

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unnecessary burdens and promotes flexibility to the greatest extent possible while carrying out the requirements of the Clean Water Act. In the short term, where the EPA is the NPDES permitting authority, operators who want permit coverage may seek coverage under the September 29, 2008, Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activities (MSGP). Alternatively, operators may submit an individual permit application. Thank you again for sharing your concerns with us. If you have further questions, please contact me or your staff may call Greg Spraul in the EPA's Office of Congressional and Intergovernmental Relations
at (202) 564-0255.

Nancy K. Stoher Acting Assistant Administrator