Marten Law on Decker v. Northwest Environmental Defense Center: No Permit Required for Stormwater Discharges from Logging Roads, U.S. Supreme Court Rules; Attention Shifts to EPA Rulemaking

   By Meline MacCurdy, Associate, Marten Law PLLC

In this Emerging Issues Analysis, Meline MacCurdy of Marten Law PLLC discusses the U.S. Supreme Court's holding in Decker v. Northwest Environmental Defense Center that stormwater runoff from logging roads is not "associated with industrial activity" and does not require a permit under the Clean Water Act's National Pollutant Discharge Elimination System program.

Excerpt:

The U.S. Supreme Court continued its recent trend of reversing Ninth Circuit environmental decisions, holding in Decker v. Northwest Environmental Defense Center (NEDC) [enhanced version available to lexis.com subscribers] that stormwater discharges from logging roads are not "associated with industrial activity" and do not require permits under the Clean Water Act's (CWA) National Pollutant Discharge Elimination System (NPDES) program. The decision comes despite an eleventh-hour attempt by EPA to moot the issue by promulgating a rule clarifying the types of discharges that do not require permits under the CWA's "Phase I" stormwater program.

The decision is welcome news to landowners, logging companies, and state and federal agencies in the west. But the decision does not completely put the issue to rest-NEDC has already filed a petition to review EPA's new rule and litigation could continue. Although the Supreme Court's decision certainly undermines the likelihood of that petition prevailing, the Supreme Court did not address a dominant issue before the lower courts-whether discharges from logging roads constitute "point sources" notwithstanding the Silvicultural Rule-nor did it address EPA's new rule. Moreover EPA could move forward with additional rulemaking covering stormwater discharges from logging roads under the CWA's "Phase II" stormwater program.

The CWA prohibits the discharge of a "pollutant" into waters of the United States from a "point source" without a permit, such as an NPDES permit. Section 402(p) of the CWA includes a phased approach for addressing stormwater discharges. Phase I covers enumerated sources of stormwater pollution, including stormwater "associated with industrial activity"-a term that the CWA does not define. Under EPA's current regulations, that term includes discharges from "immediate access roads ... used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility." The Phase II stormwater regulations apply to any additional stormwater discharges that EPA designates to protect water quality. For such designated discharges, EPA need not require NPDES permits, but must "establish a comprehensive program" that "may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate."

EPA has excluded forest road runoff from the NPDES program almost ever since Congress passed the CWA. After refining the Silvicultural Rule in response to court action, the Silvicultural Rule changed little for approximately 35 years before the Ninth Circuit's decision. The current language of the Silvicultural Rule limits "silvicultural point sources" 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." Falling outside the definition are "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."

As a lawyer with the Marten Law PLLC, Meline MacCurdy's practice focuses on environmental litigation, as well as environmental permitting and review of facilities in the Pacific Northwest. She has particular experience with state and federal cleanup laws, including brownfield redevelopment and cost-recovery actions falling under MTCA and CERCLA, the Clean Water Act, and emerging issues involving climate change and energy. Ms. MacCurdy earned her Juris Doctor, cum laude, from Cornell Law School where she served as the General Editor of the International Law Journal. She received her Bachelor's Degree, summa cum laude, from Colgate University. Prior to joining the Marten Law Group, she served as a legal intern for the Natural Resources Defense Council in New York.

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