Questions remain for the timber industry after Supreme Court's decision in Decker v. Northwest Environmental Defense Center.

AuthorMacCurdy, Meline G.
  1. INTRODUCTION II. STATUTORY AND REGULATORY BACKGROUND A. Development of EPA's Silvicultural Rule B. Factual and Procedural Background III. THE NINTH CIRCUIT'S DECISION A. The Silvicultural Rule B. The Phase I Program IV. IMPACTS TO AND REACTIONS FROM THE TIMBER INDUSTRY V. THE AFTERMATH OF THE NINTH CIRCUIT'S DECISION A. Appeals to the Supreme Court B. EPA Rulemaking. VI. THE SUPREME COURT A. The United States' Amicus Brief B. Other Amicus Briefs C. Oral Argument and Supplemental Briefing D. The Supreme Court's Opinion VII. POTENTIAL IMPLICATIONS I. INTRODUCTION

    For nearly three years between the Ninth Circuit decision holding that Clean Water Act (CWA)permits were required for stormwater discharges from logging roads and the Supreme Court's ruling on the issue, the timber industry was placed in the uncomfortable position of facing potential enforcement actions despite the absence of an available or practicable permitting scheme. (1) The Supreme Court's reversal of the Ninth Circuit in Decker v. Northwest Environmental Defense Center (Decker) (2) provides substantial comfort to the timber industry, as well as landowners and state and federal agencies in the West and elsewhere in the United States.

    However, due to the limited scope of the Supreme Court's opinion and the unusual eleventh-hour rulemaking by the Environmental Protection Agency (EPA), which was presumably intended to moot the issues on appeal, the timber industry and other stakeholders are not yet entirely out of the woods. Litigation regarding EPA's new rule is already underway and, although Decker certainly undermines the likelihood of that petition prevailing, the Supreme Court's decision not to address whether discharges from logging roads constitute "point sources" or interpret EPA's new rule leaves some uncertainty about the litigation's resolution. Additionally, EPA's new rule suggests the agency intends to move forward with additional rulemaking that would cover some types of logging or forest roads within the CWA's "Phase II" stormwater program. Although that program is generally less prescriptive than the "Phase I" program at issue in Decker, it could nevertheless layer additional regulatory requirements on an industry already subject to various types of state and local regulation.

    This Article describes the odyssey of the Decker litigation, including its background and aftermath, and highlights the practical implications of regulating discharges from logging roads. In doing so, this Article describes the statutory and regulatory background to the Ninth Circuit's decision, the legislative and regulatory efforts to unwind that decision, the Supreme Court's reversal of the Ninth Circuit, and the epilogue to the Supreme Court decision, including several issues that remain unresolved.


    The CWA prohibits the discharge of a "pollutant" into waters of the United States from a "point source" without a permit, such as a National Pollutant Discharge Elimination System (NPDES) permit. (3) The CWA defines a "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit... from which pollutants are or may be discharged." (4)

    In 1987, faced with the prospect of overwhelming EPA and state agencies with processing and monitoring compliance for innumerable permits for stormwater discharges, Congress amended the CWA to provide a phased approach for addressing stormwater discharges through section 402(p) of the CWA. (5) Phase I covers enumerated sources of stormwater pollution, including stormwater "associated with industrial activity" (6)--a term the CWA does not define. The Phase II stormwater regulations apply to any additional stormwater discharges that EPA designates to protect water quality. (7) For such designated discharges, EPA need not require NPDES permits, but must "establish a comprehensive program" that "may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate." (8)

    1. Development of EPA's Silvicultural Rule

      EPA has excluded runoff from logging roads from the CWA's NPDES permitting scheme since that program was first established in the 1970s. (9) In 1973, one year after passage of the CWA, EPA issued regulations that categorically exempted several kinds of discharges from the NPDES program, including "[d]ischarges of pollutants from agricultural and silvicultural activities," but allowed regulation of point source discharges from any agricultural or silvicultural activity identified by EPA or a state as "a significant contributor of pollution." (10) A district court overturned this exemption as too broad, holding that EPA should have determined which agricultural and silvicultural activities were point and nonpoint sources and that EPA could not exempt from the NPDES program whole classes of what the statute defined as point sources. (11)

      In 1976, EPA proposed a revised Silvicultural Rule, maintaining that "most water pollution related to silvicultural activities is nonpoint in nature." (12) EPA determined that only four activities associated with silvicultural operations--each relating to controlled water use by a person-would be considered point sources: rock crushing, gravel washing, log sorting, and log storage facilities. (13) Any other silvicultural discharge, even if made through a "discernible, confined and discrete conveyance" such as a ditch or culvert, was considered a nonpoint source of pollutants. (14) EPA explained that "ditches, pipes and drains that serve only to channel, direct, and convey nonpoint runoff from precipitation are not meant to be subject to the [section] 402 permit program." (15)

      The current language of the Silvicultural Rule, changed slightly since 1976, limits "silvicultural point sources" to "rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States." (16) Falling outside the definition are "non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff." (17)

    2. Factual and Procedural Background

      At issue in Decker were two state-owned logging roads in Oregon's Tillamook State Forest. (18) Various timber companies use the roads to access logging sites and haul timber under contracts with Oregon. (19) The timber sales contracts designate specific routes for timber hauling and require the timber companies to maintain the roads and their associated stormwater collection systems, including ditches, culverts, and channels that collect and convey stormwater runoff from the roads to tributary streams and adjacent rivers. (20) An environmental group, Northwest Environmental Defense Center (NEDC), brought a citizen suit under the CWA alleging sediment discharges in stormwater from logging roads negatively impact aquatic life, such as salmon and trout, and as point sources require permits under the NPDES program. (21)

      The District Court of Oregon dismissed NEDC's lawsuit, holding that the Silvicultural Rule exempted the discharges from the NPDES program. According to the district court,

      the fact that pollutants deposited on top of the roads during timber hauling end up being washed into the water bodies does not turn the road system with its associated ditches and culverts into a point source. The road/ditch/culvert system and timber hauling on it is a traditional dispersed activity from which pollution flowing into the water cannot be traced to single discrete sources. (22) III. THE NINTH CIRCUIT'S DECISION

      NEDC appealed the district court decision, arguing that the unpermitted stormwater discharges violate the CWA, despite the Silvicultural Rule. (23) The Ninth Circuit also addressed a second issue the district court elected not to: Whether and to what extent the Phase I program applies to stormwater runoff from logging roads. (24)

      The Ninth Circuit agreed with NEDC, holding that discharges from the logging roads require compliance with an NPDES permit. (25) Although the court stopped short of expressly invalidating the Silvicultural Rule, it held the rule does not and cannot exempt runoff that is collected from logging roads and discharged from a ditch or culvert to jurisdictional waters. (26)

    3. The Silvicultural Rule

      In addressing the Silvicultural Rule, the Ninth Circuit's decision exhaustively reviewed the statutory definition of "point sources" under the CWA, case law interpreting the distinction between point and nonpoint sources, and the genesis and history of the Silvicultural Rule. According to the court, because "runoff is not inherently a nonpoint or a point source of pollution," the distinction between point and nonpoint source discharges turns not on the runoff itself, but on whether stormwater "is allowed to run off naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through a system of ditches, culverts, channels, and similar conveyances (and is thus a point source discharge)." (27)

      In the court's view, EPA's intent in the Silvicultural Rule was to focus on the "source of the pollutant" and not the mechanism of discharge, where "any natural runoff containing pollutants" from silvicultural activities is exempt "from the definition of point source, irrespective of whether, and the manner in which, the runoff is collected, channeled, and discharged into" jurisdictional water. (28) This approach, the court opined, directly conflicts with the statutory definition of "point source" under the CWA, and is therefore invalid. (29)

      Instead of striking down the Silvicultural Rule, however, the court...

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