Decker, et al., v. Northwest Environmental Defense Center (11-338)l Georgia-Pacific West, et al., v. Northwest Environmental Defense Center (11-347)

Oral argument: 
December 3, 2012

The Environmental Protection Agency ("EPA") has interpreted the Clean Water Act ("CWA") in such a way so that certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes are exempt from the permit process. Relying on §1365 of the CWA, the Northwest Environmental Defense Center ("NEDC") brought a citizen’s lawsuit in federal district court in an attempt to eliminate the exemption from the permit process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision. The ability of federal courts to review agency action as well as the scope of an agency’s authority are at stake in this case. Also, the Supreme Court’s decision can clarify the ability of citizens to bring an action to change the EPA’s course of action under the CWA. Finally, these procedural and administrative questions could ultimately have an effect on the environment and water quality as well as the procedures loggers must follow to ensure they comply with the CWA.

Questions as Framed for the Court by the Parties 

DECKER, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s ("EPA") rules implementing the Clean Water Act’s ("CWA") 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 the EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. The 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 EPS’s rules, even though EPA has determined that it is not industrial stormwater? 

GEORGIA-PACIFIC WEST, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER 

Since passage of the Clean Water Act, the Environmental Protection Agency ("EPA") 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, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the 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.

The 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 the EPA--rejected the EPA’s longstanding interpretation. Instead, it directed the 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 the EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that the EPA regulate such runoff as industrial stormwater subject to NPDES.

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Issue(s)

Whether citizens can file a lawsuit to challenge the validity of the EPA granting an exception to the National Pollutant Discharge Elimination System permit requirement.

If a citizen's lawsuit is permissible, what level of deference, if any, should be given to the EPA’s interpretation of the Clean Water Act and the NPDES permit requirements with respect to the logging industry.

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Facts

The Clean Water Act (“CWA”) prohibits the discharge of pollutants from a point source into the navigable waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit. The Act defines a “point source” as “any discernible, confined and discrete conveyance.” 33 U.S.C. §1362(14). Natural runoff is not a point source, and does not require a permit. Agricultural runoff is exempt from the Act and from the permit requirement, even if the runoff is collected into ditches or channels before being returned to a navigable water source. NEDC v. Brown, 640 F.3d 1063, 1070 (9th Cir. 2011).

The Environmental Protection Agency (“EPA”) has consistently held that stormwater runoff from logging roads should be treated similarly to agricultural runoff. SeeNEDC at 1073. Since 1976, the EPA has differentiated discharges from silviculture (forestry and logging) activities that are a direct result of controlled water use by a person (point source) from those that are the result of natural runoff (non-point source). See id. at 1074.Therefore, it has been the practice that natural runoff from silviculture activities does not require a permit, even if the runoff collects into discernible channels before discharge. See id.

On August 17, 2010, the Ninth Circuit Court of Appeals held that when stormwater runoff from logging roads is collected in a system of ditches, culverts, or channels, before being discharged into streams or rivers, that runoff constitutes a point source discharge that is “associated with industrial activity.”NEDC at 1085. This decision overturned almost 40 years of regulatory exemption for stormwater discharges from logging roads, and requires a Phase I permit for such discharge. See id. 

The Ninth Circuit held that the prior silviculture policy was inconsistent with the text of the CWA requiring a permit for the discharge of pollutants from point sources, and distinguishing between point and nonpoint sources based on the method of discharge into the body of water, not based on the initial cause of the discharge. See NEDCat 1071-71.  Because the defendants in this case, the Oregon State Forester, members of the Oregon Board of Forestry, and various timber companies, channeled stormwater runoff into ditches and pipes before discharge into forest streams and rivers, the court held that these discharges constituted point source pollution, which requires a permit. See NEDCat 1085. 

If upheld, the Ninth Circuit decision will force the EPA to treat controlled runoff of natural stormwater from logging roads as Phase I stormwater associated with industrial activities requiring an NPDES permit in order to be released. NEDCat 1082. This change will require state forestry agencies and timber companies in Oregon, who are charged with maintaining logging roads, to seek NPDES permits for discharges. See id.

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Discussion

Decker’s arguments focus on the validity of the silvicultural rule and the Phase I stormwater regulations, the lack of deference afforded to the Environmental Protection Agency ("EPA") regarding those rules, and the impropriety of allowing jurisdiction. See Brief for Petitioner, Decker, et al.at 7–8. Decker claims that allowing jurisdiction in this instance would create uncertainty regarding the validity of regulations that have long been in place and that could now be challenged. See id.at 31–32.

Many of the amici, such as the farming and forestry associations, state and local governments, and forestry scholars and scientists, point out the importance and efficacy of local best management practices to address the environmental impacts of runoff from logging roads. These amici further point out the potential financial and practical burden that imposing National Pollutant Discharge Elimination System ("NPDES") requirements could have on those that own, use, and regulate logging roads. See, e.g.,Brief of Amicus Curiae American Farm Bureau Federation, et al. in Support of Petitionersat 6; see also Brief of Amicus Curiae Pacific Legal Foundation, et al. in Support of Petitionersat 10. For example, the Pacific Legal Foundation asserts that the Ninth Circuit decision could increase the number of NPDES permit applications by approximately 750,000, which would nearly double the total number of NPDES permits administered by EPA. See Brief of Amicus Curiae Pacific Legal Foundation, et al. in Support of Petitionersat 13. The Ninth Circuit recognized the sizeable demand that its decision will place on the EPA, but stated its confidence, “given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to [regulate the logging road runoff] effectively and relatively expeditiously.” NEDC v. Brown, 640 F.3d 1063, 1087 (9th Cir. 2011).

Additionally, several of the state and local government amici, in addition to some of the regulated parties and others that rely on forest and logging roads for their businesses and recreational pursuits, express concern that the financial burden imposed by the Ninth Circuit decision could result in fewer open and maintained logging and forest roads. See Brief of Amicus Curiae Association of Oregon Counties, et al. in Support of Petitionersat 19; see also Brief of Amicus Curiae National Governors Association, et al. in Support of Petitionersat 23. These amici contend that this possible decline in the number of logging roads would negatively impact various logging and agricultural businesses, reduce tax revenue, and impede recreational pursuits.  See Brief of Amicus Curiae Association of Oregon Counties at 19; see also Brief of Amicus Curiae National Governors Association at 23.

Finally, the National Federation of Independent Business Small Business Legal Center raises potential constitutional concerns. See Brief of Amicus Curiae National Federation of Independent Business Small Business Legal Center in Support of Petitionersat 7. It questions the validity of the Ninth Circuit decision in light of the ninth and tenth amendments, which reserve states’ rights. See id.There is a policy issue here of state sovereignty from the federal government, which would be diminished if the Supreme Court affirms the Ninth Circuit’s ruling.

Northwest Environmental Defense Center’s ("NEDC") policy argument is predicated on the fact that clean, drinkable water is a finite resource that is increasingly important to preserve and protect. See Brief for Respondent, Northwest Environmental Defense Center at 2–4.

It is necessary for agricultural, industrial, ecological, and recreational uses, and for safe and healthy human consumption. USDA, Natural Resources Conservation Service, November 11, 2012, http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/water/ It argues that the Clean Water Act’s ("CWA") NPDES permit program provides the right tool to address the ongoing pollution to the nation’s river systems. See Brief for Respondent at 17.

NEDC argues that Congress intended the CWA to be an effective mechanism for reducing pollution and protecting clean water. See Brief for Respondent at 17. NPDES permits are proven, effective, and manageable by state and federal agencies. See id. The EPA and the states have crafted workable permit solutions to handle many different types of pollutant discharge issues in the past, including dealing with complex municipal stormwater issues, runoff from industrial facilities, and runoff from construction sites larger than one acre. See Brief of Amicus Curiae Environmental Protection Information Center in Support of Respondentat 19. NEDC believes that creating a specific permit to deal with logging roads should be no different. See Brief for Respondent at 8–10.

NEDC admits that the implementation of these measures will include costs for the regulated silviculture industry, but argues that the process of regulating and monitoring pollution under a NPDES permit will be an effective means to protect the public’s water supply and fisheries. See Brief for Respondent at 52. A special exemption from the CWA for this industry would allow polluters to continue damaging our nation’s waters with little control or oversight. See id. at 57–58.

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Analysis

The Petitioners in Decker, et al., v. Northwest Environmental Defense Center Arguments for Allowing the EPA to Exempt Logging Activities from CWA Permitting Requirements

Doug Decker and the other petitioners argue that the Court ought to defer to the Environmental Protection Agency’s ("EPA") interpretation of its own regulation, which in this case is the Silvicultural and the Phase I Stormwater Discharge Rules. See Brief for Petitioners, Doug Decker et. al. at 21. Because the decision to exclude runoff that is collected in ditches and culverts is reasonable and consistent with terms of the rule, the EPA claims there is no reason for the Court to interrupt the deference to the Agency in this area. See id. at 22. The petitioners further argue that the EPA has interpreted the silvicultural rule and stormwater discharge rule this way for years.  See id.at 23. The EPA has long interpreted the runoff exception as continuing to apply even when the runoff collects in channels or culverts. See id.at 25.

According to Decker, the Ninth Circuit should not have made a decision about the validity of the EPA’s rule, and in making such a decision the court exceeded its authority.  See Brief for Petitioners, Doug Decker et. al. at 31. In Decker’s view, a citizen’s suit under the Clean Water Act ("CWA") can enforce an EPA regulation, not challenge its validity. See id. at 31. To challenge the substance of an EPA regulation, a party must use the rule-review process, while actions to enforce can take the form of a citizen’s lawsuit.  See id.at 31-32. According to Decker, Congress intentionally set up these different avenues for challenging and enforcing CWA regulations, and the Ninth Circuit should have followed Congressional intent.  See id.at 33-34. Finally, Decker argues that the Ninth Circuit should not have classified silvicultural stormwater as ‘industrial’ stormwater. See id.at 47. Congress did not provide a definition of 'industrial' in the CWA. See id.at 46-47. Where Congress does not provide a definition of a statutory term, like 'industrial', Congress can delegate the authority to define the term to Congress rather than leaving it to the courts to define the term. See id.

The Petitioners in Georgia-Pacific West, et al., v. Northwest Environmental Defense Center Arguments for Allowing the EPA to Exempt Logging Activities from CWA Permitting Requirements

Like the Petitioners in Decker, et al., v. Northwest Environmental Defense Center, Petitioners in Georgia-Pacific West, et al., v. Northwest Environmental Defense Center argue for deference in the EPA’s interpretations, specifically with regard to the agency’s interpretation of the CWA. See Brief for Petitioners, Georgia-Pacific West, Inc., Hampton Tree Farms, Inc., Stimson Lumber Co., Swanson Group, Inc., American Forest & Paper Association, Oregon Forest Industries Council, & Tillamook County at 18. Georgia-Pacific West, Inc. et. al ("Georgia-Pacific West") argue that the Ninth Circuit should not have held that channeled forest road runoff is subject to National Pollutant Discharge Elimination System ("NPDES") permitting. See id. at 18. Because the EPA interpreted the definition of point source, petitioners argue that the courts should give deference to that interpretation under Chevron deference. See id.at 19. Under Chevron deference, where a Congress leaves a gap in a statute, such as not defining a term in the statute, it is up to the agency, not the courts, to fill that gap. See id.at 18-19. Georgia-Pacific West reads the CWA as leaving a gap in defining point sources which the EPA properly filled in. See id.at 20. The EPA needed to draw a line to separate what is a point source from what is not a point source, and it was reasonable for the EPA to place silvicultural activities as non-point source side of the line. See id.at 22. The EPA reasonably specified silvicultural activities as non-point sources. See id.at 26. Also, excluding silvicultural activities from the NPDES permit program is in keeping with Congress goal of preserving the power of the states to address water pollution since the forest roads, ditches and culverts are often owned by the states themselves. See id. at 27-28. Even if the EPA’s interpretation of the regulation is not the only possible interpretation, it is still entitled to deference if it is sufficiently rational. See id.at 29. The EPA addressed the need to regulate forest road runoff through best practices rather than the permit procedure, which demonstrates that they were not ignoring the issue entirely. See id. at 43-44.

Georgia-Pacific West also argues that the Ninth Circuit lacks subject matter jurisdiction. See Brief for Petitioner, Georgia-Pacific West, inc., et al. at 50. The Administrative Procedures Act forces plaintiffs to act within 120 days if they wish to seek enforcement to challenge an agency regulation. See id. at 51-52. Georgia-Pacific West argues that the Ninth Circuit should not have reviewed the EPA’s rules because it did not have the authority to invalidate those rules. See id. at 54-55.

The Respondents in Decker, et al., v. Northwest Environmental Defense Center and Georgia-Pacific West, et al., v. Northwest Environmental Defense Center

The Northwest Environmental Defense Center (NEDC) contends that § 1369(b) is not applicable because it applies only to challenges to a CWA regulation, not an action to enforce the CWA which would be subject to certain statutory restrictions. See Brief for Respondent, Northwest Environmental Defense Center at 17. According the NEDC, the EPA’s interpretation of its regulations is either inconsistent with the text of the regulation, or the regulation would be better read to require permits. See id. at 18. In either reading, the NEDC contends that because the EPA is incorrectly interpreting the regulation, enforcement of the correct meaning of the regulation is the proper remedy. See id. at 19. Not only does the NEDC argue that the Court has the ability to resolve any conflict between the text of the CWA and the EPA’s interpretation of its regulations to enforce the CWA, but Decker also argues that it is good policy to resolve such a conflict. See id. at 21.

The NEDC also claims that even if the Court rejects its argument that the CWA requires permits for the discharges in this case, § 1369(b) would still not apply here because the regulations at issue in this case did not issue an NPDES permit. See Brief for Respondent at 23. Rather than applying to all NPDES regulations, § 1369(b) only applies to actions issuing or denying a permit under NPDES. See id. at 24. 

The NEDC insists that the CWA requires permits for the types of discharges from the logging activities that are central to this case. See Brief for Respondent at 30-31. They argue that any pipe ditch, channel, or tunnel from which pollutants are or may be discharged is a point source according to the text of the CWA. See id. at 31-32.

The United States filed an amicus brief in support of the petitioners in both cases. The United States argues that § 1365(a) rather than § 1369(b) should apply, which means the United States supports allowing a citizen’s lawsuit in this case. See Amicus Curiae the United States in Support of Petitioners at 15-17. The United States believes the Ninth Circuit erred in its failure to defer to the EPA’s interpretation of the CWA. See id. at 19. Where the agency’s interpretation does not conflict with the text of a regulation, the interpretation is controlling. See id.at 20. The United States contends that the EPA’s interpretation that the logging runoff was not from an industrial activity within the meaning of the statute and the EPA’s interpretation of the Silvicultural rule should both have been controlling. See id. at 23, 28.

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Conclusion

This case involves a challenge to a Ninth Circuit ruling that runoff from logging roads conveyed in ditches requires a stormwater permit. Petitioners argue that the Ninth Circuit should not have held that channeled forest road runoff is subject to NPDES permitting. Because the EPA interpreted the definition of point source, petitioners argue that the courts should give deference to that interpretation under Chevron deference. According the NEDC, the EPA’s interpretation of its regulations is either inconsistent with the text of the regulation, or the regulation would be better read to require permits. If upheld, the decision would require landowners, logging companies, and state and federal agencies to develop and obtain stormwater permits to manage stormwater discharges from public and private lands. The Court has afforded itself an opportunity to clarify an area of law that will have immediate and profound consequences for thousands of landowners and millions of acres of forest lands.

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