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.

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At issue was an ongoing dispute over the discharge of channeled stormwater runoff from logging roads in Oregon’s Tillamook State Forest. This stormwater is generated when rain runs off of logging roads and travels from ditches onto rivers and streams depositing sediments. The Northwest Environmental Defense Center (NEDC) sued logging and paper companies that were lawfully logging in the State Forest; alleging that they had violated the Clean Water Act. Specifically, the NEDC alleged that the stormwater run-off from an active logging road constituted an unpermitted discharge of a pollutant from a point source, that posed a risk to endangered species and aquatic life.

In 2007 the District Court in Northwest Environmental Defense Center v Brown, 476 F.Supp.2d 1188 (D. Or., 2007) held that NPDES permits were not required because the channels that received the stormwater were not point sources under the Clean Water Act and that the “Silvicultural Rule” did not require a permit pursuant to 40 CFR §122.27(b)(1). In 2011 the U.S. Court of Appeals (Ninth Circuit) reversed this ruling and held that, in fact, these logging roads were point sources and were not exempt from permitting requirements under the applicable industrial stormwater rules. [See Northwest Environmental Defense Center v Brown, 640 F.3d 1063 (9th Cir. 2011.]

The U.S. Supreme Court accepted the EPA’s position that the logging roads did not constitute an industrial activity and the roads were only related to the harvesting of raw material for which a NPDES Permit was not required. The Court in giving deference to EPA’s opinion, agreed that the water conveyance at issue did not directly relate to the “manufacturing, processing, of raw materials, storage areas at an industrial plant” (40 CFR §122.26(b)(14). For that reason, the Supreme Court reversed the Ninth Circuit decision and held the activity did not come within the scope of the industrial stormwater rule.

Justice Scalia issued a separate opinion dissenting in part, with the majority opinion, on the issue of giving deference to the EPA’s interpretation of a regulation, when it is at odds with the natural reading of the regulation.

The American Forest and Paper Association has come out in support of the decision and repeated its position that runoff from logging roads has been successfully regulated through best management practices employed by the industry for over 35 years.

It is interesting to note that in advance of oral arguments before the Supreme Court, the EPA clarified in the “Silvicultural Rule” and stated that NPDES permit requirement do apply to logging operations that involve rock crushings, gravel washing, log sawing and log storage. These are all activities enumerated in the Silvicultural Rule. In response, the NEDC has filed a petition to review this rulemaking by EPA.

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