No NPDES Point Source Discharge Permits Required for Stormwater Runoff from Logging Road Drainage Systems
By: John R. Embick – April, 2013
Co-Chair, CCBA Environmental Law Section
The Supreme Court of the United States (“SCOTUS”), for the second time in 2013, has issued a ruling which addresses the basic elements of what constitutes a point source discharge under the federal Clean Water Act, 33 U.S.C. §§ 1251, et seq.
The first case involved stormwater runoff in the Los Angeles, CA environs (See, L.A. County Flood Control District v. NRDC, INC., et al, No. 11-460, slip op. (U.S. 1/8/2013 (October Term 2012)). In the article, Soup Pot and Ladle Rule Wins Again, I discussed the main holding of L.A. County Flood Control District.
The second case, issued March 20, 2013, is Decker, et al, v. Northwest Environmental Defense Center, No. 11-338. The opinion was written by perennial swing man Justice Kennedy, with six other justices joining. Justice Scalia concurred in part, but dissented as to the main holding, and Justice Breyer did not participate.
In Decker, SCOTUS was called upon to determine whether permits are required for stormwater runoff from logging road drainage systems into navigable waters located in the Tillamook State Forest near Portland, Oregon.
The Ninth Circuit Court of Appeals had ruled below that NPDES permits were required. The circuit court decision overturned decades of administrative precedent, and might have doubled the total number of NPDES permits that the agency would have to review and administer.
In Decker, the logging roads are used in connection with the timber harvesting operations. It was undisputed that runoff from the graded roads enters a system of ditches, culverts and channels and discharges into navigable waters of the United States. The runoff contains pollution in the form of sediments which is harmful to aquatic organisms.
These discharges were therefore point sources of pollution for which National Pollution Discharge Elimination System (“NPDES”) permits are required, unless an exemption applies. The permit requirement is a core provision of the Federal Clean Water Act, designed ultimately to achieve fishable, swimmable waters in our nation.
Under the Clean Water Act, a point source is:
“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” §1362(14).
After the passage of the Clean Water Act, the U.S. Environmental Protection Agency (“USEPA”) struggled with the task of issuing permits for the enormous number of point sources covered by the Act. Accordingly, USEPA promulgated a series of administrative rules which exempted certain categories of point sources from the permit rule. Another major way in which the agency attempted to deal with the logistical problem of issuing permits is to devise a set of general permits (as opposed to individual permits), which cover various discharges. Under general permit rules, a person may carry out an activity by giving notice to the government and by complying strictly with the conditions in the general permit.
One of these administrative rules was the so-called Silvicultural Rule. See, 40 CFR §122.27(b)(1). The Silvicultural Rule basically exempted runoff from logging roads from the NPDES permit requirement.
In 1987, the Clean Water Act was amended to deal more precisely with pollution caused by stormwater runoff, a pollution issue which earlier had been largely ignored (EPA asserts there were bigger fish to fry). As part of the effort to regulate stormwater discharges, USEPA enacted what has become known as the Industrial Stormwater Rule. See 40 CFR 122.26(b)(14) (2006). The Industrial Stormwater Rule exempted some stormwater discharges, and required permits for stormwater discharges from industrial activity. Industrial activity was not defined in the Act, and, as you might imagine, could cover quite a bit of territory.
The Industrial Stormwater Rule was enacted to help define the scope of activities for which stormwater discharge permits would be required. USEPA argued that stormwater runoff from logging roads continued to be exempted under the Industrial Stormwater Rule. The Plaintiffs in Decker, proceeding under the Citizen Suit provision of the Act, argued that permits were required.
On November 30, 2012, only days before the case was argued before the High Court, USEPA issued its final version of an amendment to the Industrial Stormwater Rule. The amendment was USEPA’s response to the Ninth Circuit’s challenged ruling below, and sought to clarify that NPDEs permits were not required for discharges from logging roads.
With that background, the Court framed the main issue as follows:
“Under the Act, petitioners were required to secure NPDES permits for the discharges of channeled stormwater runoff only if the discharges were ‘associated with industrial activity,’ 33 U. S. C. §1342(p)(2)(B), as that statutory term is defined in the preamendment version of the Industrial Stormwater Rule, 40 CFR §122.26(b)(14) (2006).” Slip Op., at 11.
Basically, the High court decided that USEPA’s interpretation of the statutory language was entitled to deference under the principles expressed in Auer v. Robbins, 519 U. S. 452 (1997), and reversed.
Justice Scalia’s dissent basically attacks the reasoning behind Auer and urges reconsideration of the Auer doctrine. In addition, Justice Scalia evidently would have upheld the Ninth Circuit’s ruling, as follows:
“I would therefore resolve these cases by using the familiar tools of textual interpretation to decide: Is what the petitioners did here proscribed by the fairest reading of the regulations? What they did was to channel stormwater runoff from logging roads without a permit. To decide whether that was permissible we must answer one, and possibly two, questions: First, was the storm water discharged from a “point source”? If not, no permit was required. But if so, we face the second question: Were the stormwater discharges exempt from the permit requirement because they were not “associated with industrial activity”? The fairest reading of the statute and regulations is that these discharges were from point sources, and were associated with industrial activity. “ Scalia Opinion, Slip Op., at 7.
So, this question regarding point source discharge permits is resolved, and it appears this is a win for the logging industry.
The Auer doctrine (deference to agency interpretation) seems secure for now. However, the written decision of Chief Justice Roberts (with whom Justice Alito joined) and of Justice Scalia, noted above, suggests that reconsideration of the Auer principal (agency deference) is lurking in the minds of several justices.