Decker v. Northwest Environmental Defense Center makes some interesting points on the scope and interpretation of the CWA

Decker v. Northwest Environmental Defense Center makes some interesting points on the scope and interpretation of the CWA

In Decker v. Northwest Envtl. Def. Ctr., 2013 U.S. LEXIS 2373 (3/20/13), the Court addressed stormwater runoff from logging roads in Oregon. Georgia-Pacific et al used two logging roads from which rainwater runs off into ditches, culverts, and channels that discharge into nearby rivers and streams. Petition NEDC filed a citizen's suit under 33 U.S.C. §1365 alleging respondent was required to obtain a NPDES permit. EPA regulations exempt such runoff from NPDES permitting requirements. The Court made several important determinations.

1. Challenges to EPA action under 33 U.S.C. §1369(b) are not a jurisdictional bar, and does not prevent the District Court from entertaining a citizen's suit under §1365.

2. EPA's recent amendment to the Industrial Stormwater Rule did not moot the issue of the lawsuit. The controversy continues when respondent may face penalties for past activities under the old rule even if the new rule provides that a NPDES permit is not applicable.

3. The pre-amendment version of the Industrial Stormwater Rule, as permissibly construed by EPA, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. The regulation is a reasonable interpretation of the statutory term “associated with industrial activity,” §1342(p)(2)(B), and the agency has construed the regulation to exempt the discharges at issue here. When an agency interprets its own regulation, the Court, as a general
rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation. The Court also found that another reason to accord Auer deference (519 U.S. 452, 461) to the EPA’s interpretation is that there is no indication that EPA's current view is a change from prior practice or is a post hoc justification adopted in response to litigation. The conclusions of EPA as to logging roads has been consistent over time.

The Court also noted that the CWA gives EPA discretion in the realm of stormwater runoff, and EPA could have reasonably concluded that further federal regulation would be duplicative or counter-productive in light of Oregon’s extensive rules on the subject.

Thus, in reality, the key to the case appears to be the literal language of §1342(p)(2)(B), associated with INDUSTRIAL activity. It was therefore reasonable for EPA to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” 40 C.F.R. §122.26(b)(14).