In two grants of certiorari this week—both over the opposition of the United States and both from the Ninth Circuit—the Supreme Court showed its continuing interest in the scope of the Clean Water Act’s permitting regimes by agreeing to decide whether rainwater runoff from forest roads requires a Section 402 permit, and whether water transfers within a municipal stormwater sewer system may constitute a prohibited “discharge.” In these cases the Supreme Court has the opportunity to end significant uncertainty about the reach of the Act that has adversely affected businesses, water and sewer managers, and regulators.
Clean Water Act—Forest Road Runoff
The Environmental Protection Agency, pursuant to the Clean Water Act, regulates “point source” discharges of pollutants through a system of permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”). Under a rule first promulgated in 1976, the EPA has defined as nonpoint source activities forest road construction and maintenance from which natural runoff results. In subsequent regulations, EPA also specified that, because forest road runoff is not industrial in nature, it does not require a permit under the Clean Water Act’s scheme for regulating stormwater discharges.
On June 26, 2012, the Supreme Court granted certiorari in and consolidated two cases arising from a Ninth Circuit decision involving forest roads—one brought by private parties and Tillamook County, Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11-347, the other brought by the State of Oregon, Decker v. Northwest Environmental Defense Center, No. 11-338—to determine whether precipitation runoff from forest roads is a point source discharge “associated with industrial activity” that requires a permit under the EPA’s regulations. In granting certiorari, the Court rejected the recommendation of the Solicitor General, whose views the Court had solicited, that certiorari be denied in both cases.
The Court’s decision will have a substantial impact on forested states and companies in the forest products industry. The decision may also have consequences for deference to administrative agencies, which will affect all regulated industries.
Respondent Northwest Environmental Defense Center (“NEDC”), the plaintiff below, alleged that the petitioners, defendants below, failed to obtain permits for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contended that these discharges are “point sources” within the meaning of the Clean Water Act. The district court rejected this argument, concluding that the discharges are exempted from the NPDES permitting process by the “Silvicultural Rule,” 40 C.F.R. § 122.27, which in the Ninth Circuit’s words, “categorically exempts all discharges from silvicultural activities resulting from natural runoff,” 617 F.3d 1176, 1189.
The Ninth Circuit reversed, declining to defer to the EPA’s Silvicultural Rule or to apply the statutory agricultural exemption, 33 U.S.C. § 1362(14).. The Ninth Circuit acknowledged that its own interpretation of the Silvicultural Rule “does not reflect the intent of EPA,” but stated that it “would allow [the court] to construe the Rule to be consistent with the statute.” 617 F.3d at 1191. The court then held that the discharges at issue are “associated with industrial activity” and thus require NPDES permits under EPA’s stormwater regulations. The Ninth Circuit also addressed a jurisdictional issue, holding that the plaintiff’s challenge to the almost 35-year-old Silvicultural Rule is timely because the rule is ambiguous.
Absent extensions, which are likely, amicus briefs in support of the petitioners will be due on August 16, 2012, and amicus briefs in support of the respondents will be due on September 17, 2012.
Clean Water Act—Discharge of Pollutants
The Clean Water Act (“CWA”) regulates “discharge[s]” of pollutants from, among other things, municipal separate storm sewer systems. 33 U.S.C. § 1342(p). In 2004 the Supreme Court held that there is no “discharge” within the meaning of the CWA when water flows between two bodies of water that are not “meaningfully distinct.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 112 (2004). On June 26, 2012, the Court granted certiorari in Los Angeles County Flood Control District v. Natural Resources Defense Council, No. 11-460, to decide whether a discharge occurs when water flows from a manmade concrete channel through which a river has been diverted back into the river’s natural waterway. In granting certiorari, the Court rejected the recommendation of the Solicitor General, whose views the Court had solicited, that certiorari be denied.
The Court’s resolution of this case could substantially narrow the CWA’s scope and therefore may prove significant for businesses that are currently or potentially subject to National Pollutant Discharge Elimination System (“NPDES”) permits.
Petitioner Los Angeles County Flood Control District (“District”) operates a municipal separate storm sewer system (“ms4”) that is subject to an NPDES permit specifying the maximum permissible levels of various pollutants. The ms4 includes not only various drains and pipes but also concrete channels through which portions of the Los Angeles River and San Gabriel River flow. Monitoring stations in the portions of both rivers included in the ms4 detected pollutant levels that exceeded the levels allowed by the District’s permit. Both rivers flow back into their natural waterways downstream from the monitoring stations.
Respondent environmental groups sued the District, alleging that the District was in violation of the permit. The district court granted summary judgment to the District, but the Ninth Circuit reversed. The court of appeals concluded that the District had violated the CWA because an unlawful discharge occurred at the point where the rivers “flowed out of the[ir] concrete channels . . ., through an outfall, and into the navigable waterways.” 673 F.3d 880, 900. The Ninth Circuit held that a discharge occurred at that point because the ms4 is “an intrastate manmade construction” that is “distinct from the . . . navigable rivers” into which it flows. Id.
Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on August 16, 2012, and amicus briefs in support of the respondents will be due on September 17, 2012.