The U. S. Supreme Court’s March 20, 2013, decision in Decker v. Northwest Environmental Defense Center is good news for the logging industry.  The Clean Water Act (Act) and EPA’s Silvicultural Rule (Regulation) do not require National Pollutant Discharge Elimination System (NPDES) permits for discharges of chan­neled stormwater runoff from logging roads.  Permits will be required for logging operations that involve rock crushing, gravel washing, log sorting and log storage facilities.

Georgia-Pacific West had a contract with Oregon to har­vest timber from a state forest. When it rained, water ran off two logging roads into ditches, culverts, and channels that discharged into nearby rivers and streams. The dis­charges usually contained sediment, which may be harmful to fish and other aquatic organisms.

The majority opinion held that EPA had made a reasonable interpretation of the Act and the Regulation to exempt the discharge. When an agency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.  Another reason to accord deference to the EPA is that the agency’s current view is not a change from prior practice or a post hoc justification adopted in re­sponse to litigation.  The EPA has been consistent in its view that this type of discharge does not require NPDES permits.  EPA’s decision also exists against a background of state regulation and EPA could have reasonably concluded that further fed­eral regulation would be duplicative or counterproductive.  The State of Oregon has developed a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater before it enters rivers and streams, requiring logging companies to con­struct roads using surfacing that minimizes the sediment runoff, and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity.

The decision is a refreshing reminder of the many benefits of judicial restraint.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.