Is a Logging Road’s Collected Runoff Exempt from NPDES Permitting?—Rethinking the EPA’s “Silvicultural Rule”

Abstract

The EPA’s various iterations of the Silvicultural Rule have succeeded in circumventing the Clean Water Act’s National Pollutant Discharge Elimination System permitting requirements for decades. Although the Ninth Circuit’s recent decision in Northwest Environmental Defense Center v. Brown significantly narrows the applicability of the Rule, the decision has left the status of the Silvicultural Rule unclear. Moreover, EPA’s latest regulations regarding stormwater discharges—which purportedly aim to provide clarity—only muddy the water. In the Supreme Court’s coming consideration of the validity of the Silvicultural Rule, it should take the opportunity to explicitly invalidate the Rule as inconsistent with the CWA. Moreover, in its decision, the Court should not be influenced by the EPA’s latest regulations because they do not alter the substance of the Silvicultural Rule and fail to conform to the requirements of the CWA.