EPA – Haul Road Ruling Clarification - Sort Of. August 11, 2011
Clarifications have begun to emerge relative to the recent decision in the NEDC vs. Brown case by the Ninth Circuit US Court of Appeals (Ninth) removing the silvicultural exemption from the Clean Water Act associated with constructed logging roads in this region. This ruling opened up the possibility of classifying forest roads (as generally defined as constructed harvesting roads that collect storm water runoff, channel it, and deliver it directly or indirectly to streams and rivers) as a point source of pollution nationwide, thus requiring permitting (general or otherwise).
In May, 44 members of congress submitted a letter to Lisa Jackson, EPA Administrator indicating their concern over the ruling, how the EPA may respond, and requesting that the EPA reaffirms that the BMP approach to managing runoff from responsible forest management is the appropriate response to take in lieu of the Ninths ruling (Kurt Schrader_Letter to EPA).
EPA’s response dated July 1, (EPA_Response Letter) while not directly reaffirming the BMP approach as a blanket response dealing with forest management runoff it did so indirectly and did provide some clarification on the definition of forest roads that was encompassed by the Ninth’s ruling. The latter was helpful for Kentucky. The EPA indicated that the ruling pertained to constructed logging roads that intentionally diverted muddy water runoff into ditches, channels and culverts that directly flowed into waters (streams, rivers, etc.). Further the EPA acknowledged that forest road standards (BMPs) that provided for stormwater flow diversion onto porous forest soils for infiltration so they do not flow into waters were not covered by the Ninth’s ruling. Further the EPA indicated that if logging roads were properly located, designed and maintained to meet the criteria provided above they would not fall under NPDES (National Pollutant Discharge Elimination System) permitting jurisdiction.
So What? This indicates that Kentucky’s current Forestry BMP minimum criteria and recommendations, if adhered to would allow forest and logging road construction and use (under most common circumstances) to be undertaken without permitting (NPDES). It is critical that in all materials, including educational and administrative products, clear wording indicates the need for construction, maintenance and use of forest and logging roads to provide for water control that results in the deposition of stormwater runoff onto porous soils including forest soils and avoids delivery of stormwater runoff directly or indirectly (i.e. through a ditches or ephemeral channels) into waters (streams, rivers, etc.). Surface water occurring from seeps and springs that naturally flow into other waters can and certainly should be allowed to continue to drain directly into streams and other waters and provisions should be used allow for proper crossing of these surface flows. Logic would indicate that we continue to stress this in KML logger education and training and in KFCA timber harvesting inspections.
There may be other ramifications of this ruling that will emerge both within the Ninth’s region and beyond. It certainly would be prudent to ensure that in Kentucky we are developing and maintaining proper BMP use and keep abreast of information coming from EPA either directly through policy change or indirectly through changes in regulatory response.
Clarifications have begun to emerge relative to the recent decision in the NEDC vs. Brown case by the Ninth Circuit US Court of Appeals (Ninth) removing the silvicultural exemption from the Clean Water Act associated with constructed logging roads in this region. This ruling opened up the possibility of classifying forest roads (as generally defined as constructed harvesting roads that collect storm water runoff, channel it, and deliver it directly or indirectly to streams and rivers) as a point source of pollution nationwide, thus requiring permitting (general or otherwise).
In May, 44 members of congress submitted a letter to Lisa Jackson, EPA Administrator indicating their concern over the ruling, how the EPA may respond, and requesting that the EPA reaffirms that the BMP approach to managing runoff from responsible forest management is the appropriate response to take in lieu of the Ninths ruling (Kurt Schrader_Letter to EPA).
EPA’s response dated July 1, (EPA_Response Letter) while not directly reaffirming the BMP approach as a blanket response dealing with forest management runoff it did so indirectly and did provide some clarification on the definition of forest roads that was encompassed by the Ninth’s ruling. The latter was helpful for Kentucky. The EPA indicated that the ruling pertained to constructed logging roads that intentionally diverted muddy water runoff into ditches, channels and culverts that directly flowed into waters (streams, rivers, etc.). Further the EPA acknowledged that forest road standards (BMPs) that provided for stormwater flow diversion onto porous forest soils for infiltration so they do not flow into waters were not covered by the Ninth’s ruling. Further the EPA indicated that if logging roads were properly located, designed and maintained to meet the criteria provided above they would not fall under NPDES (National Pollutant Discharge Elimination System) permitting jurisdiction.
So What? This indicates that Kentucky’s current Forestry BMP minimum criteria and recommendations, if adhered to would allow forest and logging road construction and use (under most common circumstances) to be undertaken without permitting (NPDES). It is critical that in all materials, including educational and administrative products, clear wording indicates the need for construction, maintenance and use of forest and logging roads to provide for water control that results in the deposition of stormwater runoff onto porous soils including forest soils and avoids delivery of stormwater runoff directly or indirectly (i.e. through a ditches or ephemeral channels) into waters (streams, rivers, etc.). Surface water occurring from seeps and springs that naturally flow into other waters can and certainly should be allowed to continue to drain directly into streams and other waters and provisions should be used allow for proper crossing of these surface flows. Logic would indicate that we continue to stress this in KML logger education and training and in KFCA timber harvesting inspections.
There may be other ramifications of this ruling that will emerge both within the Ninth’s region and beyond. It certainly would be prudent to ensure that in Kentucky we are developing and maintaining proper BMP use and keep abreast of information coming from EPA either directly through policy change or indirectly through changes in regulatory response.
