In a 7-1 ruling (with Justice Breyer recused), the United States Supreme Court reversed a Ninth Circuit Court of Appeals decision that would have requried public and private logging operations to obtain Clean Water Act discharge permits for stormwater flowing from logging roads.
The case originated in Oregon's Tillamook State Forest, roughly 40 miles west of Portland. In 2006, the Northwest Environmental Defense Center (NEDC) filed a Clean Water Act citizen suit against Oregon and various timber and paper-products operations, including Georgia-Pacific West, alleging that runoff from logging roads constituted point source discharges that required industrial stormwater permitting under the Clean Water Act (NPDES permits). The trial court dismissed the lawsuit, agreeing with defendants that EPA's "Silvicultural Rule" excluded such sources from the definition of "point sources." However, the Ninth Circuit reversed, finding that logging road runoff constiuted point source discharges under the Silvicultural Rule, as well as EPA's Industrial Stormwater Rule.
The Supreme Court disagreed. Sidestepping several procedural arguments that would have precluded reaching the merits of the case, the Court found that EPA's construction of its own Industrial Stormwater Rule, i.e., that the Rule excluded log harvesting activities as separate from "traditional industrial sources such as sawmills," constituted a reasonable interpretation. In so finding, the Court relied heavily on prior decisions granting government agencies substantial deference in interpreting regulations they themselves have promulgated. Despite a last-minute rulemaking effort by EPA to cement the exclusion prior to the Court hearing oral argument in the case, the Court also noted EPA's long-standing interpretation excluding logging road runoff from Clean Water Act requirements. The Court did not address EPA's new rule or the question of whether the challenged discharges were "point sources."
In an interesting twist, three Justices indicated a desire to curtail the amount of deference afforded to agency rule interpretations. Chief Justice Roberts and Justice Alito openly invited a challenge to this practice by a subsequent lawsuit. Justice Scalia, the lone dissenter, would have thrown out the EPA's interpretation as against the most natural reading of the rule. In other words, three Justices have sent a clear message to government agencies that they should say what they mean in rules the first time, rather than relying on the courts to bail them out in subsequent challenges based on vague and ambiguous regulatory language.
Finally, it is importatnt to note that the decision did not impact permitting requirements related to other aspects of the silvicultural industry. Specifically, activities such as log sorting, log storage, gravel washing, rock crusing, among others, remain subject to stringent permitting requirements under the state-implemented NPDES program. For more information on the decision, its potential impact, or NPDES permitting issues, please contact Heather Burgess or Kelly Wood.
The full decision can be found here: