Decker v. NEDC: The Supreme Court may not be the end of the (unregulated) forest road

Vol. 44 No. 3

Chris Carr is a partner and chair of the Environment and Energy group at Morrison & Foerster LLP. Shaye Diveley is a senior associate at the firm. They were counsel of record for Pacific Lumber Company in EPIC v. Pacific Lumber Co.

The U.S. Environmental Protection Agency (EPA) estimates that the United States has approximately 751 million acres of forest land, crisscrossed by hundreds of thousands of miles of roads. See 77 Fed. Reg. 30,473 (May 23, 2012). Productive, working forests depend on these roads. Typically, foresters have used best management practices to reduce erosion and protect water quality from stormwater discharges associated with road maintenance and use. In California, for example, there are on average 2.43 drainage features routing stormwater off or under each mile of forest road. This means that there are more than 107,000 forest road drainage features in California alone.

For nearly 40 years EPA has formally and consistently maintained that forest roads and their associated drainage features are not point sources of water pollution subject to the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) program. However, in Northwest Environmental Defense Center (NEDC) v. Brown, 640 F.3d 1063 (9th Cir. 2011), the Ninth Circuit swept aside EPA’s established precedent by “interpreting” EPA’s long-standing “Silvicultural Rule” (40 C.F.R. §122.27) as not excluding forest roads and their drainage features from NPDES permitting. The court of appeals held that forest roads are point sources of industrial stormwater discharge under the plain language of the Clean Water Act.

The Supreme Court granted certiorari on June 25, 2012. In so doing, the Court rejected the Solicitor General’s recommendation against review. While asserting that the Ninth Circuit got it wrong on the merits, the Solicitor General argued against review in part because EPA had proposed to address the Ninth Circuit’s error through rulemaking. What the Supreme Court holds and what EPA ultimately does could fundamentally change Clean Water Act regulation for the timber industry.

First attempt: EPIC v. Pacific Lumber Co.

In NEDC v. Brown, neither the U.S. District Court in Oregon (where the case was filed) nor the Ninth Circuit reached the issue of whether stormwater runoff from forest roads actually met the elements necessary to trigger NPDES permit coverage. Instead, the Supreme Court has before it the Ninth Circuit’s decision reversing the trial court’s order granting a motion to dismiss based upon the definition of a silvicultural point source under the Silvicultural Rule. An earlier test case, Environmental Protection Information Center (EPIC) v. Pacific Lumber Co., 469 F. Supp. 2d 803 (N.D. Cal. 2007), was the first and only case in which the issue of whether such stormwater runoff meets the Clean Water Act elements was actually litigated. EPIC provides a window on what citizen suit litigation under the Clean Water Act targeting forest roads will look like if the Supreme Court affirms the Ninth Circuit’s decision.

Filed in 2001 in the U.S. District Court for the Northern District of California, EPIC spanned seven years and spawned numerous motions to dismiss, motions and cross-motions for summary judgment, and requests (all filed by Pacific Lumber and denied) for certification of interlocutory appeal. EPIC limited its “test” case to Pacific Lumber’s Bear Creek watershed, a watershed encompassing some 5,500 acres of redwood forest on steep slopes heavily traversed with roads that are crossed by a network of seasonal watercourses leading downhill to Bear Creek.

Upon filing, Pacific Lumber quickly moved to dismiss the lawsuit as barred by the Silvicultural Rule, which explicitly defines stormwater runoff from forest roads as non-point source pollution and, thus, not subject to regulation under the NPDES program. The district court denied all efforts by Pacific Lumber to secure early dismissal of the case, holding that the regulation, lest it be ultra vires of the Clean Water Act, must be interpreted to require a NPDES permit for any logging road with a point source. EPIC v. Pacific Lumber Co., No. C. 01-2821 MHP (N.D. Cal. Oct. 14, 2003). As a result, the district court allowed EPIC to try to prove that Pacific Lumber’s forest roads were, in fact, point sources discharging stormwater to Bear Creek. EPIC v. Pacific Lumber Co., 301 F. Supp. 2d 1102 (N.D. Cal. 2004).

Following years of extensive fact and expert discovery, EPIC moved for summary judgment to establish Pacific Lumber’s liability. The district court denied the motion (EPIC v. Pacific. Lumber Co., 469 F. Supp. 2d 803 (N.D. Cal. 2007)), holding that EPIC failed to establish that the hillslope watercourses “significantly affect[ed] the chemical, physical and biological integrity” of Bear Creek, so as to satisfy the “significant nexus” requirement established by the Supreme Court in Rapanos v. United States, 546 U.S. 715 (2006). The court also held that EPIC had failed to establish that culverts, ditches, and other road drainage features channel stormwater into the hillslope watercourses. Nonetheless, the district court pointedly held that drainage features associated with forest roads—such as rolling dips and culverts—can themselves be “point sources,” allowing the case to proceed to trial in which EPIC would have the opportunity to prove its case. These liability issues were never tried because Pacific Lumber Company entered bankruptcy in early 2008.

Try again: NEDC v. Brown

In the meantime, the U.S. District Court for Oregon issued a decision in March 2007 dismissing a Clean Water Act citizen suit on the ground that stormwater discharges from forest roads are non-point source pollution, per EPA’s Silvicultural Rule, and thus not subject to NPDES permitting. NEDC v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007). The Oregon District Court rejected as “wrongly decided” the earlier decision in EPIC v. Pacific Lumber Co., which had denied a similar motion to dismiss and instead “interpreted” EPA’s longstanding Silvicultural Rule not to exclude such stormwater discharges from NPDES permitting. Id. at 1197.

Plaintiffs appealed, and the United States submitted a brief as amicus curiae asserting that the Silvicultural Rule excluded discharges from forest roads from the NPDES program. The Ninth Circuit heard argument in 2008, but did not issue a decision until 2011. In its opinion, the Ninth Circuit explicitly agreed with the holding of EPIC v. Pacific Lumber Co. that forest roads and associated drainage features are point sources of industrial stormwater discharges. It also “interpreted” EPA’s Silvicultural Rule as not excluding stormwater discharges from NPDES permitting despite EPA’s longstanding position that such discharges were not subject to the program. NEDC, 640 F.3d at 1079–80.

The State of Oregon and the timber industry unsuccessfully petitioned the Ninth Circuit for rehearing and en banc review. Although the Ninth Circuit issued a modified opinion, it continued to hold that forest roads that drain into ditches and culverts are point sources subject to the NPDES permitting program. Thereafter, the State of Oregon and the timber groups petitioned for certiorari. The Supreme Court issued an order requesting the views of the Solicitor General on whether review should be granted.

In May 2012, the Solicitor General recommended against review of NEDC v. Brown because EPA had already proposed to address such discharges through rulemaking. The Solicitor General also asserted that the Ninth Circuit had erred on the merits and should have deferred to EPA’s longstanding interpretation of its Silvicultural Rule.

In June 2012, the Supreme Court granted certiorari. On September 4 (the same day the Solicitor General’s merits brief as amicus curiae was filed), EPA issued its proposed rulemaking to specify that stormwater discharges from logging roads are not stormwater discharges “associated with industrial activity.” 77 Fed. Reg. 53,834 (Sept. 4, 2012).

Not the last word?: Oral argument

In light of the Ninth Circuit’s track record before the Supreme Court in environmental cases, and, specifically of late, Clean Water Act cases, many expected the Supreme Court’s grant of review to be the end of the road for the environmental community’s efforts to overturn the Silvicultural Rule. However, EPA threw a wrench into the works by promulgating its final rule on Friday, November 30—right before oral argument was scheduled on Monday, December 3.

EPA’s final rule amended 40 C.F.R. § 122.26(b)(14)(ii) to expressly limit industrial activities subject to the NPDES program to the previously specified “rock crushing, gravel washing, log sorting, or log storage facilities” and exclude “all other types of silviculture facilities.” Revisions to Stormwater Regulations to Clarify that NPDES Permit is Not Required for Stormwater Discharges from Logging Roads, 77 Fed. Reg. 72,970 (Dec. 7, 2012).

The Supreme Court did not seem pleased by this late-breaking development. Chief Justice Roberts stopped Petitioners’ argument at its very start, stating: “Well, before we get into that, congratulations to your clients . . . [for] getting almost all of the relief they’re looking for under the new rule issued on Friday. . . . And thank you for calling it to our attention.” The Deputy Solicitor General was pointedly asked why the Court was not informed sooner of the EPA’s imminent decision, as the Court might have delayed oral argument had it been so informed. Thereafter, the Justices went to on to question all involved parties regarding why EPA’s new rule does not simply moot the entire matter.

Interestingly, NEDC strenuously argued against finding that the case is moot, undoubtedly hoping not only to preserve its favorable Ninth Circuit decision, but also its ability to seek attorneys’ fees under the Clean Water Act for its decade-long lawsuit. A Supreme Court decision that the EPA’s rule moots the case would simply mean the environmental groups would have to start all over again, bringing a petition to review the new rule in the court of appeals or possibly new citizen suits in district court against timber companies. However, this was a possibility that the Court appeared happy to live with.

One more try?: Regulation under section 402(p)(6)

The new rule also did not end the uncertainty with EPA. In the announcement for the proposed rule (77 Fed. Reg. 53,824 (Sept. 4, 2012)), EPA expressed its intention to evaluate other silvicultural discharges “under section 402(p)(6) of the Clean Water Act because the section allows for a broad range of flexible approaches that may be better suited to address the complexity of forest road ownership, management, and use.” Id. at 53,837. EPA’s proposal to regulate forest roads and their associated drainage features under section 402(p)(6) may prove as onerous for the industry as attempting to comply with a general stormwater permit under the NPDES program.

EPA’s announcement is troubling, as the very issue before the Supreme Court is whether forest roads and their associated drainage features are non-point sources, as defined by the Silvicultural Rule (40 C.F.R. §122.27). Indeed, even if EPA merely relies on state regulation of forest roads (as is permitted under the flexibility inherent in section 402(p)(6)), the implication would be that such forest roads and features are, in fact, point sources and the state programs are “in-lieu of” federal regulation. This would not eliminate the specter of citizen suits and it could federalize state forest practices regulations by conditioning Clean Water Act compliance on EPA approval for state regulatory programs.

EPA could also designate a subset of forest roads as point source discharges of stormwater and establish a regulatory program for the targeted roads. But, again, given the quantity of forest road miles and conveyances, even regulating a subset could pose a permitting and enforcement nightmare. As a result, even if the Supreme Court overturns NEDC (which seems doubtful in light of the questions posed by several of the Justices during the hearing), the “flexibility” of the 402(p)(6) program provides little certainty to timber companies. There is still a long road ahead.


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