I've written a number of articles about this important issue: focusing on the case background before the Ninth Circuit, commentary on why this would be a good case for the U.S. Supreme Court to accept, Congress's temporary stay on permitting, and EPA's proposed short-term regulatory fix. I'm working on a detailed article suggesting a course of action for the Supreme Court.
The question presented by the Georgia-Pacific petition for certiorari focused on EPA's longstanding Silvicultural Rule:
Since passage of the Clean Water Act, the Environmental Protection Agency has considered runoff of rain from forest roads—whether channeled or not —to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, EPA consistently has defined as nonpoint source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here. EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.
The Ninth Circuit—in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to EPA—rejected EPA’s longstanding interpretation. Instead, it directed EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is:
Whether the Ninth Circuit should have deferred to EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES.
The Decker petition for certiorari focused on slightly different legal issues:
(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s (EPA’s) rules implementing the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination System (NPDES) permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding.
Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA?
(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14).
Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPA’s rules, even though EPA has determined that it is not industrial stormwater?
I will update this post periodically with commentary on the case as it comes in today.