On March 20, 2013, the United States Supreme Court held that discharges of channeled stormwater runoff from logging roads were exempt from the National Pollutant Discharge Elimination System (“NPDES”) permitting scheme. (Decker v. Nw. Envtl. Def. Ctr., --- U.S. --- (2013), 2013 WL 1131708, at *12) The case turned on whether or not such discharges were “associated with industrial activity” – if so, then such discharges would not be exempt from NPDES permit requirements.
The Environmental Protection Agency (“EPA”) argued that the definition of “industrial activity” pertained to operations of a more fixed and permanent nature, rather than to the transportation of logging raw materials. The Supreme Court agreed and overruled the Ninth Circuit Court of Appeals. The Supreme Court ruled that since the discharges at issue were not “associated with industrial activity,” such discharges did not require NPDES permits because they fell within the Clean Water Act’s general exemption for “discharges composed entirely of stormwater.”
The EPA’s November 30, 2012 amendment to the Industrial Stormwater Rule removed uncertainty as to the permit requirements for discharges from logging roads going forward. The Decker decision also clarified that companies do not have liability for past discharges of channeled stormwater runoff from logging roads conducted without NPDES permits. This is significant because the Act allows private parties to file citizen’s suits to enforce its provisions and to recover attorney’s fees and costs. Moreover, civil penalties for violation of the Act may be severe and result in fines of up to $25,000 per day for each violation.
The Decker decision is also significant because of the Supreme Court’s interpretation of the Industrial Stormwater Rule as extending only to traditional industrial buildings such as factories and associated sites and other relatively fixed facilities. Other transportation or mobile industries should take note of this holding. The same logic could potentially be applied to argue that such operations are not “associated with an industrial activity” and are likewise exempt from NPDES permit requirements.
I invite you to read an article that I recently published, which explains the background, the Decker decision, and the significance of this case in more detail.