Clean Water Act—Forest Road Runoff

The Environmental Protection Agency, pursuant to the Clean Water Act, regulates “point source” discharges of pollutants through a system of permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”). Under a rule first promulgated in 1976, the EPA has defined as nonpoint source activities forest road construction and maintenance from which natural runoff results. In subsequent regulations, EPA also specified that, because forest road runoff is not industrial in nature, it does not require a permit under the Clean Water Act’s scheme for regulating stormwater discharges.

On June 26, 2012, the Supreme Court granted certiorari in and consolidated two cases arising from a Ninth Circuit decision involving forest roads—one brought by private parties and Tillamook County, Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11-347, the other brought by the State of Oregon, Decker v. Northwest Environmental Defense Center, No. 11-338—to determine whether precipitation runoff from forest roads is a point source discharge “associated with industrial activity” that requires a permit under the EPA’s regulations. In granting certiorari, the Court rejected the recommendation of the Solicitor General, whose views the Court had solicited, that certiorari be denied in both cases.

The Court’s decision will have a substantial impact on forested states and companies in the forest products industry. The decision may also have consequences for deference to administrative agencies, which will affect all regulated industries.

Respondent Northwest Environmental Defense Center (“NEDC”), the plaintiff below, alleged that the petitioners, defendants below, failed to obtain permits for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contended that these discharges are “point sources” within the meaning of the Clean Water Act. The district court rejected this argument, concluding that the discharges are exempted from the NPDES permitting process by the “Silvicultural Rule,” 40 C.F.R. § 122.27, which in the Ninth Circuit’s words, “categorically exempts all discharges from silvicultural activities resulting from natural runoff,” 617 F.3d 1176, 1189.

The Ninth Circuit reversed, declining to defer to the EPA’s Silvicultural Rule or to apply the statutory agricultural exemption, 33 U.S.C. § 1362(14).. The Ninth Circuit acknowledged that its own interpretation of the Silvicultural Rule “does not reflect the intent of EPA,” but stated that it “would allow [the court] to construe the Rule to be consistent with the statute.” 617 F.3d at 1191. The court then held that the discharges at issue are “associated with industrial activity” and thus require NPDES permits under EPA’s stormwater regulations. The Ninth Circuit also addressed a jurisdictional issue, holding that the plaintiff’s challenge to the almost 35-year-old Silvicultural Rule is timely because the rule is ambiguous.

Absent extensions, which are likely, amicus briefs in support of the petitioners will be due on August 16, 2012, and amicus briefs in support of the respondents will be due on September 17, 2012