The only U.S. Supreme Court case on the Court’s Fall docket relating to an environmental matter is Decker v. Northwest Environmental Defense Center. In this case (which was consolidated with Georgia Pacific West, Inc. v. Northwest Environmental Defense Center), the Northwest Environmental Defense Center brought suit to compel logging operations to apply for Clean Water Act (CWA) permits for the runoff from dirt logging roads. Evidence presented by the NEDC indicated that the runoff was adding significant amounts of sediment to adjacent rivers and streams and alleged that logging road runoff was from a point source that required a permit under the CWA. The District Court ruled against the NEDC, however the 9th Circuit Court of Appeals’ reversed and, in doing so, invalidated the EPA’s interpretation of the Silvicultural Rule as it applies to stormwater runoff from logging roads. The 9th Circuit’s opinion and related briefs can be viewed on Scotusblog’s website here.

The Clean Water Act prohibits the discharge of pollutants to waters of the United States from any point source without a permit, and the CWA established the National Pollutant Discharge Elimination System (NPDES) to regulate such discharges. Originally the CWA did not regulate stormwater runoff, however, in 1987 Congress amended the CWA to establish a phased approach for regulating stormwater runoff under the NPDES system.

As detailed by the 9th Circuit in Decker, the EPA’s Silvicultural Rule (40 CFR 122.27(b)(1)), which was originally promulgated in 1973, has a long history and was the subject of prior lawsuits shortly after it was promulgated (and again after it was revised). The Rule regulates “any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States.” However, it exempts “non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.”

The 9th Circuit found that the CWA was intended to be comprehensive in controlling pollution and the Court took issue with the EPA’s attempt to exempt an entire category of point sources on the basis of the origin of the water (natural ran versus man made). Essentially the Court determined that this differentiation was not justifiable and could not be given the deference that is normally afforded to governmental agencies. Thus, the 9th Circuit held that the Silvicultural Rule did not exempt stormwater runoff from logging roads that is “collected and channeled into a system of ditches, culverts and conduits before being discharged” to rivers and streams.

Further, the Court held that Congress did not approve of the Silvicultural Rule by enacting the 1987 CWA amendments. The 9th Circuit pointed out that Congress’1987 amendments addressed five categories of industrial discharges in Phase I and one of those categories included logging operations. Thus, in the 9th Circuit’s view, even though the EPA’s Phase I industrial stormwater regulations exempted those activities covered by the Silvicultural Rule, the Court ruled that a NPDES permit was required under the EPA’s industrial stormwater regulations for logging road runoff because logging operations were encompassed within one of the CWA’s “industrial activities.”

The Supreme Court agreed to review the 9th Circuit’s decision on June 25, 2012, however, a hearing date has not been announced. In the meantime, the Court will have to sort through the numerous amici briefs that have already been filed on behalf of the Petitioner and those that will undoubtedly be filed in support of the 9th Circuit decision and the Northwest Environmental Defense Center.