The U.S Supreme Court recently decided the case of Decker v Northwest Environmental Defense Center, (U.S. Mar 20, 2013). In Decker the Supreme Court reviewed the lower court’s Opinion that had held stormwater discharges from logging roads are to be considered point sources, and that they are not exempt from the National Pollution Discharge Elimination System (NPDES) permit requirements under the Clean Water Act.
At issue was an ongoing dispute over the discharge of channeled stormwater runoff from logging roads in Oregon’s Tillamook State Forest. This stormwater is generated when rain runs off of logging roads and travels from ditches onto rivers and streams depositing sediments. The Northwest Environmental Defense Center (NEDC) sued logging and paper companies that were lawfully logging in the State Forest; alleging that they had violated the Clean Water Act. Specifically, the NEDC alleged that the stormwater run-off from an active logging road constituted an unpermitted discharge of a pollutant from a point source, that posed a risk to endangered species and aquatic life.
In 2007 the District Court in Northwest Environmental Defense Center v Brown, 476 F.Supp.2d 1188 (D. Or., 2007) held that NPDES permits were not required because the channels that received the stormwater were not point sources under the Clean Water Act and that the “Silvicultural Rule” did not require a permit pursuant to 40 CFR §122.27(b)(1). In 2011 the U.S. Court of Appeals (Ninth Circuit) reversed this ruling and held that, in fact, these logging roads were point sources and were not exempt from permitting requirements under the applicable industrial stormwater rules. [See Northwest Environmental Defense Center v Brown, 640 F.3d 1063 (9th Cir. 2011.]
The U.S. Supreme Court accepted the EPA’s position that the logging roads did not constitute an industrial activity and the roads were only related to the harvesting of raw material for which a NPDES Permit was not required. The Court in giving deference to EPA’s opinion, agreed that the water conveyance at issue did not directly relate to the “manufacturing, processing, of raw materials, storage areas at an industrial plant” (40 CFR §122.26(b)(14). For that reason, the Supreme Court reversed the Ninth Circuit decision and held the activity did not come within the scope of the industrial stormwater rule.
Justice Scalia issued a separate opinion dissenting in part, with the majority opinion, on the issue of giving deference to the EPA’s interpretation of a regulation, when it is at odds with the natural reading of the regulation.
The American Forest and Paper Association has come out in support of the decision and repeated its position that runoff from logging roads has been successfully regulated through best management practices employed by the industry for over 35 years.
It is interesting to note that in advance of oral arguments before the Supreme Court, the EPA clarified in the “Silvicultural Rule” and stated that NPDES permit requirement do apply to logging operations that involve rock crushings, gravel washing, log sawing and log storage. These are all activities enumerated in the Silvicultural Rule. In response, the NEDC has filed a petition to review this rulemaking by EPA.