May 01, 2012

Are Clean Water Act permits required for stormwater pollution from industrial logging roads?

Paul Kampmeier

In May 2011, the U.S. Court of Appeals for the Ninth Circuit held that the Clean Water Act (CWA) and its implementing regulations require National Pollutant Discharge Elimination System (NPDES) permits for discharges of stormwater from pipes, ditches, and channels along logging roads used to haul timber. Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). The defendants—the Oregon State Forester, members of the Oregon Board of Forestry, and four timber companies—as well as the defendant-intervenors American Forest and Paper Association, Oregon Forest Industries Council, and Tillamook County, filed petitions for writs of certiorari. On December 12, 2011, the U.S. Supreme Court invited the Office of the Solicitor General to submit a brief expressing the views of the federal government, which was filed on May 23, 2012. This article summarizes the principal issues presented by the petitions and briefly addresses how regulators might implement the decision should the Supreme Court deny review.

NEDC seeks enforcement of EPA’s CWA rules

In 2006, the Northwest Environmental Defense Center (NEDC) filed a CWA citizen suit to enforce EPA’s Phase I Stormwater Rule, 40 C.F.R. § 122.26 (1990), which requires NPDES permits for “point source” discharges of stormwater associated with certain industrial activities, including logging activities. Id. at § 122.26(b)(14)(ii) (regulating industries within Standard Industrial Classification 24, which includes SIC 2411—“Logging”).

At the center of the lawsuit are two roads that are used for accessing logging operations and hauling timber out of the Tillamook State Forest in northwest Oregon. Like many logging roads across the West, both roads use pipes, ditches, and channels—conveyances the CWA explicitly defines as “point sources,” 33 U.S.C. § 1362(14)—to collect and convey stormwater to nearby rivers and streams. The stormwater is often polluted with fine sediment that is generated by truck traffic and that can adversely affect cold-water fishes such as salmon and trout. NEDC sued the Oregon state officials because they manage the Tillamook State Forest as a working forest and they control, in part, the logging roads in that forest. NEDC sued the four timber companies because they were hauling timber and logging equipment on the roads. NEDC alleged that the defendants were violating the CWA by discharging stormwater associated with industrial activity from point sources without NPDES permits.

The defendants moved to dismiss NEDC’s citizen suit, contending that NEDC failed to state a claim upon which relief could be granted. Specifically, they argued that the U.S. Environmental Protection Agency’s (EPA’s) Phase I Rule did not require NPDES permits for logging roads because that rule incorporated the Silvicultural Rule, 40 C.F.R. § 122.27 (1980). The Silvicultural Rule requires NPDES permits for “silvicultural point sources” but also notes that that term “does not include ‘nonpoint source silvicultural activities such as . . . surface drainage, or road construction and maintenance from which there is natural runoff.’” Id. at § 122.27(b)(1). According to the defendants, the Silvicultural Rule redefines pipes, ditches, and channels along logging roads as nonpoint sources that are exempt from the NPDES permit requirement. The district court agreed with the defendants and dismissed NEDC’s complaint.

The Ninth Circuit rules in favor of regulation

In August 2010, the court of appeals reversed the district court and remanded NEDC’s citizen suit for further proceedings. The Ninth Circuit ruled that the Silvicultural Rule is ambiguous—that it could be read to exclude point sources or read to exclude only “nonpoint sources” of “natural runoff”—but that the defendants’ interpretation impermissibly conflicts with the statutory definition of point source. Accordingly, the court ruled that the Silvicultural Rule does not exempt discharges from pipes, ditches, and channels from the NPDES permit requirement and that EPA’s Phase I Rule requires NPDES permits for point-source discharges of stormwater along logging roads used to haul timber.

After the defendants petitioned for rehearing and rehearing en banc, the Ninth Circuit directed the parties to submit supplemental briefs addressing EPA’s prior contention, as amicus curiae, that NEDC’s lawsuit was a challenge to the Silvicultural Rule that was barred by section 509(b)(2) of the CWA, 33 U.S.C. § 1369(b)(2). Section 509(b)(2) limits the relief available to citizen plaintiffs by prohibiting the federal courts from providing judicial review of certain EPA actions that are subject to immediate review in the courts of appeals. EPA had argued that NPDES rules are subject to that immediate review and that NEDC’s citizen suit was an improper challenge to the Silvicultural Rule. In response to the petitions for rehearing, NEDC argued that the court properly exercised jurisdiction over the lawsuit because NEDC sought enforcement of the rules, not invalidation of them. EPA conceded the point but the defendants did not. Instead, they argued for the first time that by ruling for NEDC the court of appeals improperly invalidated an EPA rule. Based in part on EPA’s concession, the Ninth Circuit in its revised opinion held that section 509(b) did not bar NEDC from contesting the regulatory interpretations offered by EPA in its amicus brief and that EPA’s rules require NPDES permits for the discharges at issue.

The defendants petition for writs of certiorari

The defendants filed separate petitions for writs of certiorari in September 2011. Decker v. Northwest Environmental Defense Council, No. 11-338; Georgia-Pacific West, Inc. v. Northwest Environmental Defense Council, No. 11-347. The petitions primarily raise four issues.

First, the petitioners argue that the circuit courts have taken different approaches to applying the CWA to stormwater discharges along logging roads; specifically, that the NEDC v. Brown decision conflicts with the Eighth Circuit’s decision in Newton County Wildlife Ass’n v. Rogers, 141 F.3d 803 (8th Cir. 1998), where the court held that the Forest Service did not violate the Administrative Procedure Act by approving timber sales without first obtaining NPDES permits for logging and road construction activities. NEDC contends there is no conflict because neither Newton County Wildlife Association nor any other circuit court opinion addresses whether the Phase I Rule requires NPDES permits for the logging industry or logging roads.

Second, the petitioners assert that the circuit courts have split over whether judicial review of NPDES rules is subject to section 509(b) of the CWA. Petitioners contend that NPDES rules are subject to section 509(b) and that the court of appeals invalidated a rule in contravention of section 509(b)(2). NEDC does not address whether NPDES rules are subject to section 509(b) review. Instead, relying on Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007), a Clean Air Act (CAA) case, NEDC contends that even if those provisions apply the court of appeals did not grant relief in contravention of section 509(b)(2) because the court did not invalidate any EPA rule. In Duke Energy, the Supreme Court vacated a judgment because the lower court’s reading of CAA regulations “was inconsistent with their terms and effectively invalidated them,” in contravention of the CAA’s restrictions on judicial review. NEDC contends that the principle announced in Duke Energy controls and that the Ninth Circuit’s interpretation of the CWA rules is permissible because it is consistent with their text.

Third, the petitioners contend that the court of appeals incorrectly applied Supreme Court Chevron deference precedents. The petitioners argue that the court of appeals was obligated to defer to what they contend is EPA’s long-standing construction of the Silvicultural Rule, which according to the petitioners excludes logging roads from NPDES permitting requirements. NEDC contends that the court of appeals correctly refused to defer to that interpretation of the regulation because the Silvicultural Rule is unambiguous and excludes from the NPDES permit requirement only “nonpoint source” “natural runoff”—stormwater that is not collected and channeled through man-made pipes, ditches, and channels. NEDC further argues that even if the Silvicultural Rule is ambiguous, as the court of appeals held, the petitioners’ proposed interpretation conflicts with the statutory definition of point source and with the Phase I Rule’s designation of “logging” as a regulated industrial activity.

Finally, the petitioners contend that the Ninth Circuit’s decision warrants Supreme Court review because it displaces Oregon’s regulatory scheme and unsettles the state-federal balance, because NPDES permits will overly burden logging road owners and operators, and because the court of appeals’ ruling is bad environmental policy. NEDC disagrees and points out that Congress and EPA set environmental policy when they determined that NPDES permits are required for point-source discharges associated with the logging industry. Instead of displacing Oregon’s nonpoint programs, NEDC notes that NPDES permits will supplement those programs with a permit program that has successfully reduced water pollution from municipal roads, construction sites, mines, landfills, and other sources without bankrupting local governments or businesses.

On April 25, 2012, EPA sent to the White House Office of Management and Budget a Draft Notice of Intent to Address Discharges from Forest Roads. Details were not available when this article went to press, but the conservation community and the timber industry certainly will be interested in learning whether EPA intends to back away from its 1990 decision to require NPDES permits for stormwater discharges associated with industrial logging. The U.S. Supreme Court will also revisit these issues later this Term. And Congress may yet get involved. In December 2011, Congress passed an appropriations rider that addresses NPDES permitting of stormwater discharges from roads associated with silvicultural activities. See Section 429 of the Consolidated Appropriations Act, 2012, Public Law No. 112-74. That rider expires on September 30, 2012, and it is not yet clear whether Congress will defer to EPA’s upcoming administrative proceedings or whether it will amend the CWA with a new exemption for the timber industry. It also is not clear how an amendment would affect the NEDC v. Brown litigation.

It is clear, however, that if the Ninth Circuit decision stands the defendants will join nearly every other American industry in a permit program that has been very effective at controlling industrial stormwater pollution. See 40 C.F.R. §§ 122.26(b)(14)(i)-(xi). Regulators, including authorized state agencies, could opt to require individual permits or to craft general permits specifically designed for the logging industry. To minimize regulatory burdens, the permitting agencies could allow industrial operators to submit one general permit application for all lands in a jurisdiction and to develop one stormwater pollution prevention plan to be applied to discharging road segments at the time they are used for industrial activities like timber hauling. Those steps, and clear guidance from EPA regarding which landowners and activities require permits, should resolve most questions concerning implementation of the decision while also limiting chronic—and harmful—logging road pollution throughout the West.

Editor’s Note: The Solicitor General (SG) filed a brief on May 23, 2012, urging that the petitions for certiorari be denied. Although the SG argued that the Ninth Circuit erred, it concluded that this error did not merit review. The SG also pointed to new proposed EPA rulemaking as a reason not to grant review. The Court is scheduled to consider the petitions at its June 21, 2012, conference.

Paul Kampmeier

Paul Kampmeier is an attorney with the Washington Forest Law Center in Seattle, Washington, and is counsel of record for the Northwest Environmental Defense Center in the pending Supreme Court proceedings.