Wireless Access Code: 9166703926

Rob CostelloDeputy Attorney General

Washington State Attorney General’s OfficeJuly 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.”

StatusCongress – 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