Supreme Court Upholds EPA's Logging Road Exception From Clean Water Act NPDES Permitting

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Opens Door to Future Citizen Suits Seeking to Enforce an Ambiguous EPA Regulation

On March 20, 2013, the U.S. Supreme Court issued an opinion in Decker v. Northwest Environmental Defense Center that addresses the issue of "whether the Clean Water Act and its implementing regulations require permits before channelized stormwater runoff from logging roads can be discharged into Waters of the United States."1

In a 7-1 opinion written by Justice Kennedy, the Court reversed the ruling of U.S. Court of Appeals for the Ninth Circuit and upheld the Environmental Protection Agency's (EPA) interpretation of its Silviculture Rule2 exempting such discharges from the Clean Water Act's ("CWA") permitting requirements. In so ruling, the Court held that future CWA citizen suits may be filed to enforce an obligation under an ambiguous EPA rule that conflicts with EPA's own interpretation where the suit is brought after the time period under the Act had passed for reviewing the underlying regulation.

The Court also upheld EPA's interpretation of its silviculture regulation, reaffirming the regulatory deference principle of Administrative Law over a strong dissent by Justice Scalia. As such, the decision has potentially broad implications for the regulated community beyond the specific silvicuture rule at issue here.

Background

The case arose out of Georgia Pacific-West (GPW) contracts with the state of Oregon to harvest timber from a state forest.3 As the Court noted, runoff from two logging roads during those activities enters ditches, culverts and channels and then discharges the water into nearby rivers and streams.4 These discharges often contain large amounts of sediment, which evidence suggests may be harmful to fish.5

Northwest Environmental Defense Center (NEDC) filed suit against GPW and various state and local government officials under the CWA's citizen-suit provision,6 alleging that the defendants failed to obtain permits required by EPA's National Pollutant Discharge Elimination System ("NPDES").7 The District Court dismissed the action, concluding that the discharges did not trigger the NPDES permitting requirement because they failed to fit the definition of a "point source" under the CWA and its implementing regulations.8

The Ninth Circuit reversed the District Court on two grounds, concluding that the discharges were not exempt from the NPDES permitting scheme.9 First, it held that the ditches, culverts and channels were "point sources" under the Silviculture Rule.10 Second, the Ninth Circuit concluded that the discharges were "associated with industrial activity" under the EPA's Industrial Stormwater Rule ("ISR") — despite EPA's contrary conclusion that the ISR excludes this type of stormwater discharges from logging roads.11

The Majority Opinion

Justice Anthony Kennedy's majority opinion, joined by seven justices,12 first addressed an important procedural issue: whether the citizen suit provision of the CWA13 allows suits to enforce obligations under an ambiguous CWA regulation after the 120-day period for directly challenging the rule under section 509 of the Act had elapsed.14 The defendants argued that section 509 provided the exclusive means for challenging EPA's rule,15 thus creating a jurisdictional...