U.S. Supreme Court defers to EPA in ruling stormwater discharges from logging roads exempt from Clean Water Act permitting requirements

Last week, in Decker v. Northwest Environmental Defense Center, No. 11-338 (U.S., Mar. 20, 2013), the United States Supreme Court held that discharges of channeled stormwater runoff from logging roads are exempt from NPDES permitting requirements under Clean Water Act regulations.

EPA’s Silvicultural Rule specifies which logging-related discharges are point sources subject to NPDES requirements. These sources must obtain NPDES permit coverage unless exempted by another federal statutory provision.  Congress enacted one such exemption in 1987 in response to the difficulties EPA had encountered in regulating discharges of stormwater runoff. That provision exempted from NPDES permit coverage “discharges composed entirely of stormwater.”

But apparently concerned that some categories of stormwater pose environmental risks, Congress created an exception to that exemption and directed EPA to continue to require NPDES permits for stormwater discharges “associated with industrial activity.”  Congress left it to EPA to define that term, which EPA did in its Industrial Stormwater Rule.

The Industrial Stormwater Rule considered “[f]acilities classified as Standard Industrial Classification [SIC] 24” to be engaging in “industrial activity.” SIC 24 relates to industries involved in the field of “Lumber and Wood Products,” including the “Logging” industry.

Citing EPA’s inclusion of SIC 24 in the list of sources performing industrial activities, the Northwest Environmental Defense Center (NEDC) filed a citizen suit against several entities involved in logging operations in Oregon’s Tillamook State Forest. NEDC argued that these entities violated the Clean Water Act by failing to obtain NPDES permit coverage for discharges of channeled stormwater runoff from two logging roads to the South Fork Trask River and the Little South Fork Kilchis River.

Weighing in as a friend of the court, EPA took a contrary view.  EPA interpreted the Industrial Stormwater Rule and its reference to SIC 24 to regulate only traditional industrial sources, like sawmills. In support of its interpretation, EPA pointed to the regulation’s reference to “facilities,” which it submitted describes fixed and permanent industrial sites, as opposed to temporary outdoor timber-harvesting operations.

In an opinion delivered by Justice Kennedy, the Court accepted EPA’s interpretation, according it what has become known as Auer deference (from the case Auer v. Robbins, 519 U.S. 452 (1997)), under which courts defer to an agency interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”

In providing Auer deference to EPA’s interpretation, the Court looked favorably upon two factors.  First, the Court noted that EPA has been consistent in its view that discharges of channeled stormwater runoff from logging roads do not require NPDES permits.  Second, the Court emphasized Oregon’s “extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads.”  The Court reasoned that EPA’s exclusion of certain logging activities from federal regulation was reasonable where federal regulation would duplicate state oversight.

(Like Oregon, Pennsylvania regulates stormwater runoff from logging roads under a state program. The Erosion and Sediment Control regulations in Chapter 102 require an erosion and sediment control permit (E&S Permit) for earth disturbance activities associated with “timber harvesting,” defined to include “the construction of . . . logging roads.” 25 Pa. Code § 102.1.  A person proposing a timber harvesting activity is required to obtain an E&S Permit if the activity involves 25 acres or more of earth disturbance. See 25 Pa. Code § 102.5(b).)

While the Court’s decision in Decker undoubtedly comes as welcome news to the logging industry, it may not be the final word on the subject, for several reasons.

First, the Court did not address whether discharges of channeled stormwater runoff from logging roads constitute a “point source” rendering EPA’s Silvicultural Rule inconsistent with the Clean Water Act, a key issue before the lower courts.

Second, the Court did not address an amendment to the Industrial Stormwater Rule — finalized by EPA three days before oral argument in a failed attempt to moot the issue under review — that clarified that the types of discharges involved do not require NPDES permit coverage.  NEDC has already filed a petition to review the new rule.

Finally, the deference that the Court accorded EPA in interpreting the Industrial Stormwater Rule may not be long for this world.  In an opinion concurring in part and dissenting in part, Justice Scalia made a case for reconsidering Auer, arguing, among other things, that the practice is inconsistent with separation of powers principles, insofar as the agency is playing both a legislative and judicial role. In a concurring opinion, Chief Justice Roberts, joined by Justice Alito, also appeared willing to revisit Auer, just not in this case.

In his opinion, Justice Scalia suggested that, in this case, “the Court’s deference to the agency ma[de] the difference.”  If and when the Court revisits Auer, we may find out if he was correct.