On March 20, 2013, the Supreme Court decided Decker v. Northwest Environmental Defense Center, No. 11-338, holding that discharges of stormwater that ran off logging roads into ditches, culverts and channels did not require a permit under the National Pollutant Discharge Elimination System.

In Decker, an environmental organization sued Georgia-Pacific West, the State of Oregon, and various local governments and officials under the citizen-suit provision of the Clean Water Act. The plaintiff alleged that Georgia-Pacific, which had a contract with Oregon to harvest lumber from state forests, had not obtained National Pollutant Discharge Elimination System (NPDES) permits before discharging stormwater runoff into two Oregon rivers. The specific discharge at issue was water that ran off two logging roads into ditches, culverts and channels.

The district court dismissed the action for failure to state a claim, concluding the NPDES permits were not required because the ditches, culverts and channels were not "point sources" of pollution under the Act. This determination was based on an interpretation of a tedious set of laws and regulations, including :

  • The Environmental Protection Agency's "Silvicultural Rule," which specifies which types of logging-related discharges are point sources, 40 CFR §122.27(b)(1);
  • A statutory provision that exempts from the permit requirement "discharges composed entirely of stormwater" unless the discharge is "associated with industrial activity," 33 U.S.C. § §1342(p)(1), (2)(B);  and
  • The EPA's "Industrial Stormwater Rule," which defines "associated with industrial activity" as covering only discharges "from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant, 40 CFR §122.26(b)(14).

The Ninth Circuit reversed the district court, holding that the conveyances were point sources under the Silvicultural Rule and concluding that the discharges were associated with industrial activity under the Industrial Stormwater Rule. Thus, the court held, a permit was required.

The Supreme Court reversed. (To complicate matters, the EPA amended the Industrial Stormwater Rule right before oral argument, clarifying that the permit requirement applied only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities.)

The Court first held that a provision of the Act governing challenges to agency actions was not a jurisdictional bar to the suit and that the EPA's recent amendment to the Industrial Stormwater Rule did not make the case moot. It held that the old version of the rule governed past discharges and might be a basis for imposing penalties, even if those types of discharges would not require a permit going forward.

Having addressed these preliminary issues, the Court gave deference to the EPA's construction of its own regulation and held that the pre-amendment version of the Industrial Stormwater Rule exempted the discharges at issue from the permitting scheme and that the rule was a reasonable interpretation of the statutory term "associated with industrial activity." The Court held that it was reasonable for the EPA to conclude that the conveyances at issue were "directly related" only to the harvesting of raw materials, rather than to "manufacturing, processing, or raw materials storage areas at an industrial plant."

The Court also noted that its deference to the EPA was appropriate because there was no indication that the EPA had recently changed its view or that the view was a post hoc justification adopted in response to litigation.

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Thomas, Ginsburg, Alito, Sotomayor, and Kagan joined. Justice Scalia joined Parts I and II of the opinion. Chief Justice Roberts filed a concurring opinion, in which Justice Alito joined. Justice Scalia filed an opinion concurring in part and dissenting in part. Justice Breyer took no part in the consideration or decision of the case.

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