U.S. Supreme Court To Review Two Controversial Decisions On Clean Water Act Jurisdiction

The U.S. Supreme Court continued its interest in the reach of the Clean Water Act (CWA) when it accepted for review two cases for its next term. Similar to the Court's decision in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001)1 and the decision in Rapanos v. United States (2006),2 in its review of Decker v. Northwest Environmental Defense Center3 and Los Angeles County Flood Control District v. Natural Resources Defense Council,4 the Court will consider the reach of federal power under the statute. Both of these controversial cases arise from the Ninth Circuit. Each case has the potential to significantly expand federal jurisdiction under the CWA. The Supreme Court's next term begins in October 2012. Decker involves the breadth of the Silvicultural Rule5 and whether logging roads are a point source for industrial stormwater. Los Angeles County also involves a question of what constitutes a point source and a discharge. At issue is whether the Los Angeles County Flood Control District is responsible for all pollutants passing through the flood control system the County operates.

Is Stormwater Runoff from Logging Roads Industrial Stormwater Requiring a NPDES Permit?

Decker, as consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, examines whether the Ninth Circuit erred when it held that stormwater runoff from logging roads constituted industrial stormwater under the rules of the CWA and, therefore, requires a National Pollutant Discharge Elimination System (NPDES) permit.6 In 2010, the Northwest Environmental Defense Center (NEDC) sued Oregon Forestry officials and various timber companies for failing to obtain permits for stormwater runoff. The runoff in question flowed from logging roads into a system of ditches, culverts, and channels designed to collect the stormwater runoff and subsequently discharged the runoff into forest streams and rivers.7

NEDC argued this runoff represents a discharge from a point source and required a NPDES permit. The defendants asserted EPA's Silvicultural Rule exempted their activities from the definition of a point source discharge and, therefore, no permit was required under the CWA. The district court agreed with the defendants and held that the discharges were exempt from NPDES permitting under the Silvicultural Rule.8

On appeal, the Ninth Circuit read the Silvicultural Rule to exempt natural runoff from silvicultural activities from permitting...