EPA Preempts Forest Roads Supreme Court Case With Final Rule

Nov 30: On November 30, 2012, U.S. EPA Administrator Lisa Jackson signed a Final Rule revising its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. The rule has not yet been published in the Federal Register but will become final 30-days following publication.

    EPA indicated that it was "taking this action in response to Northwest Environmental Defense Center v. Brown (9th Circuit), in which the court held that stormwater runoff from certain logging roads is a point source discharge of industrial stormwater that requires an NPDES permit. EPA did not intend for logging roads to be regulated as industrial facilities and has revised its stormwater regulations to clarify the Agency's intent."

    On December 3, the U.S. Supreme Court heard oral argument for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC) [See WIMS 11/26/12], which addresses three questions: (1) Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)? (2) Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits? and, (3) Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final? EPA's final rule now makes most of the arguments moot. 

    Fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.

    In the opening of the oral argument, Chief Justice Roberts said the petitioners, ". . .congratulations to your clients -- getting almost all the relief they're looking for under the new rule issued on Friday." However, the petitioners continued to argue, ". . .there is an additional reason why we don't think that the rule here moots -moots the issue. Let -- let's assume that there is a petition for review. I think that's a fairly safe -safe assumption. That some environmental groups argue that the new rule is impermissible because it's at odds with the language of the -- language of the statute, an argument that I think is -- is near frivolous, but that I think will be -- predictably will be made. The rule is prospective. What we have is a judgment from the Ninth Circuit that says that we were in violation for decades by not having permits. And . . ."

    But Chief Justice Roberts seemed to disagree and said, "Well, but it's -- it's an unusual situation for us to rule in a case where the issue has ongoing significance and that's taken away. And what we would be doing is, when there is a new rule, we would be considering quite a lot of difficult issues to determine what the old rule was, so that you can unravel what the Ninth Circuit has upheld. . ."

    Access the complete oral argument transcript (click here). Access a prepublication copy of the EPA final rule (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). Access EPA's Stormwater Discharges From Forest Roads website for complete background and information (click here). [#Water, #Land, #SupCt, #CA9]

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