The Supreme Court had oral arguments last Monday (December 3) in Decker v. Northwest Environmental Defense Center, just after EPA the previous Friday (November 30) surprisingly issued a new rule clarifying that a NPDES permit is not required for stormwater discharges from logging roads.
EPA, in its statement on the new rule, says: “In Northwest Environmental Defense Center v. Brown (NEDC), 640 F.3d 1063 (9th Cir. 2011), a citizen suit was filed alleging violations of the Clean Water Act for discharging stormwater from ditches alongside two logging roads in state forests without a permit. The court held that because the stormwater runoff from the two roads in question is collected by and then discharged from a system of ditches, culverts, and channels, it is a point source discharge of industrial stormwater for which an NPDES permit is required. The EPA did not intend for logging roads to be regulated as industrial facilities. However, in light of NEDC, the EPA has revised 40 CFR 122.26(b)(14) to clarify the Agency’s intent. The EPA believes that stormwater discharges from forest roads, including logging roads, should be evaluated under section 402(p)(6) of the Clean Water Act [the "Phase II" Stormwater Rule] because the section allows for a broad range of flexible approaches that are better suited to address the complexity of forest road ownership, management, and use. The EPA has added language to existing stormwater regulations to clarify that, for the purposes of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities under Standard Industrial Code (SIC) code 2411 that are “industrial” are: rock crushing, gravel washing, log sorting, and log storage.”
The Supreme Court now is wrestling with how to handle the case in light of the clarifying regulation. It is weighing options of (1) reversing the lower court’s decision on the ground that the lower court failed to apply EPA’s silvicutural rule (which exempts certain farming activities from CWA regulations)(this approach is advocated by the logging industry); (2) dismissing the case as moot and vacating the 9th circuit’s opinion or remanding to the 9th circuit to address the mootness question (this approach is advocated by the Solicitor General); or (3) dismiss the petition for cert as being improvidently granted (this approach is advocated by the environmental group).
The environmental group is likely to challenge the “clarifying” regulation on the ground that it is contrary to the Clean Water Act.
It’s likely that none of the parties will get what they want. The win for the environmental group isn’t likely to be upheld since the underlying rule has been clarified; the logging industry probably won’t get a reversal on the merits; and there’s not likely to be a substantive decision at all. All of this means that the uncertainty surrounding the scope of Clean Water Act jurisdiction that has been problematic since the Court’s 2006 decision in Rapanos (regarding the definition of “jurisdictional waters”) will remain in place for now.
The EPA, for its part, seems to indicate that it will make good on a longstanding promise to regulate runoff from logging roads through a stormwater rule (instead of the NPDES industrial permitting regime). Back in 1999, EPA had issued its “Phase II” stormwater rule. Challenges by environmental groups were brought because EPA did not include logging road stormwater discharges under that rule. In Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003), the Ninth Circuit directed EPA to consider regulating logging road stormwater discharges under the stormwater amendment, finding that the Silvicultural Rule related to NPDES permitting did not prevent EPA from regulating forest roads as stormwater discharges. Although EPA has not since then taken any action to include logging road stormwater under the “Phase II” rule, it is arguing before the Supreme Court and telegraphing in its statement clarifying the NPDES rule that it now intends to take that approach.
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