The public, private, and tribal forests of the United States are crisscrossed by thousands of miles of logging roads. When it rains or snow melts, the runoff from those roads can be environmentally harmful, depositing large amounts of sediment and other pollutants into streams and rivers. How, under the federal Clean Water Act (CWA), should logging road runoff be addressed? On March 20, 2013, the Supreme Court answered a key aspect of that question. In Decker v. Northwest Environmental Defense Center , the Court held that EPA had permissibly construed a prior version of its Industrial Stormwater Rule to exempt stormwater runoff from logging roads that is channeled—that is, collected in ditches, culverts, or other channels—from the discharge permit scheme in the Clean Water Act (CWA). The Ninth Circuit decision had prompted immediate reaction in Congress, which enacted legislation barring EPA from requiring discharge permits for logging road runoff until September 30, 2013, and now has enacted permanent legislation to that effect (the 2013 farm bill, H.R. 2642 , P.L. EPA's Silvicultural Rule . As a nonpoint source, such runoff required no NPDES permit. Before the Court was the version of EPA's Industrial Stormwater Rule addressed by the decisions below—that is, before the agency amended it on November 30, 2012, three days prior to oral argument. On the merits, recall that the CWA requires timber companies to have NPDES permits for channeled logging road runoff only if the discharges are, in the words of the CWA, "associated with industrial activity"—as that phrase is defined in EPA's Industrial Stormwater Rule. EPA had long interpreted this rule definition not to reach logging road runoff, and the Supreme Court concluded 7-1 in Decker that EPA's interpretation of its rule was a permissible one. The rule's references suggested to the Court that its natural reading was confined to traditional industrial buildings, and so did not extend to logging operations. Moreover, EPA had espoused this reading for a long time; it had not been adopted recently in response to this litigation. In light of these factors, the Court viewed the precept that courts owe deference to agency interpretations of their own rules as applying in full force. Finally, the state of Oregon had invested much effort in developing best management practices for stormwater runoff from logging roads, so EPA, as the Court saw it, could reasonably have concluded that further federal regulation would be unnecessary. Accordingly, the Supreme Court reversed the Ninth Circuit and remanded the case. In any event, the rule as amended in November 2012 clarifies that stormwater discharges from logging roads do not constitute stormwater discharges "associated with industrial activity" and, accordingly, that a NPDES permit is not required. As expected, the rule is intended to get around the Ninth Circuit ruling by specifying that logging roads do not need CWA pollution discharge permits for stormwater runoff. Second, EPA said that the agency is considering designating a subset of stormwater discharges from forest roads under CWA Section 402(p)(6), the authority for the Phase II stormwater program. 112-74 ), with a provision that barred EPA from requiring a permit for stormwater runoff associated with silvicultural activities until September 30, 2012. 113-79 ), includes a provision similar but not identical to the House-passed language.
U.S. forests are crisscrossed by thousands of miles of logging roads. When it rains or snow melts, runoff from these roads can be environmentally harmful, so how to address this runoff under the Clean Water Act (CWA) has long been an issue.
On March 20, 2013, the Supreme Court in Decker v. Northwest Environmental Defense Center addressed one aspect of this issue: logging road runoff that is discharged into CWA-covered waters from ditches, culverts, or other channels. Such conveyances arguably make the runoff a "point source" under the CWA, which normally means that a permit under the act's National Pollutant Discharge Elimination System (NPDES) is required. Special CWA provisions, however, exempt stormwater runoff, unless, as relevant here, it is "associated with industrial activity." In Decker, the Supreme Court upheld 7-1 EPA's long-standing reading of its Industrial Stormwater Rule that logging road runoff, even if channeled, is not "associated with industrial activity" and so does not require a NPDES permit. This reversed the Ninth Circuit and affirmed EPA's view that logging road runoff is subject only to a requirement of best management practices.
In upholding EPA's reading of its rule as exempting logging road runoff from the NPDES program, the Court observed that references in the Industrial Stormwater Rule suggest that its natural reading should be confined to traditional industrial buildings, and so does not extend to logging operations. Moreover, EPA had espoused this reading for a long time; it had not been adopted recently in response to this litigation. In light of these factors, the Court viewed the precept that courts owe deference to agency interpretations of their own rules as applying in full force. Finally, the state of Oregon had invested much effort in developing best management practices for stormwater runoff from logging roads, so EPA, as the Court saw it, could reasonably have concluded that further federal regulation would be unnecessary.
EPA's response to the Ninth Circuit ruling was to amend the Industrial Stormwater Rule. The amended rule, issued in November 2012 three days prior to the oral argument before the Supreme Court, makes explicit the agency's long-standing position that logging roads do not need CWA discharge permits for stormwater runoff. The Supreme Court opinion actually deals with EPA's reading of the prior, less explicit version of the Industrial Stormwater Rule. The amended rule may or may not be resurrected on remand to the district court. For the moment, however, the status quo is unchanged: NPDES permits have never been required for logging road runoff, and they are not required as of now. EPA also is considering designating a subset of stormwater discharges from forest roads for regulation under flexible mechanisms available in the CWA, including non-permitting approaches, but the agency has not issued a proposal or announced a timetable for further action.
Congressional interest in responding to the Ninth Circuit ruling has been strong. Congress enacted temporary measures that barred EPA until September 30, 2013, from requiring a permit for stormwater runoff associated with silviculture activities. The 2013 farm bill reauthorization (H.R. 2642, P.L. 113-79) includes a provision stating that discharges resulting from specified silviculture activities shall not require CWA discharge permits.