U.S. Supreme Court: Industrial Stormwater Permit Not Required For Discharges From Logging Roads

Published Apr 03, 2013

In Decker v. Northwest Environmental Defense Center and a companion case, Georgia-Pacific West v. Northwest Environmental Defense Center, the U.S. Supreme Court affirmed the Environmental Protection Agency’s determination that stormwater runoff from forest roads is not a “point source” of water pollution requiring a permit under the Clean Water Act. EPA policy and regulation has emphasized state-supervised best management practices (BMPs) as the preferred method of controlling stormwater runoff from logging roads. The Northwestern Environmental Defense Center had argued that timber companies and the Oregon State Forester violated the Clean Water Act because industrial stormwater permits had not been obtained for two logging roads in Oregon’s Tillamook State Forest. The case involved EPA’s Silvicultural Rule and Industrial Stormwater Rule, which EPA has long interpreted to exclude logging roads from the NPDES permitting requirement. The U.S. Court of Appeals for the Ninth Circuit had ruled in 2011 that logging road runoff was not exempt, despite EPA's interpretation.

The Supreme Court concluded that EPA’s determination is a reasonable interpretation of its own regulations, and accordingly deferred to EPA’s interpretation under Auer v. Robbins, 519 U.S. 452 (1997). In an opinion by Justice Kennedy, the Court explained: "It is well established that an agency's interpretation need not be the only possible reading of a regulation—or even the best one—to prevail." Justice Scalia dissented, saying it is time to reconsider Auer v. Robbins – a decision he wrote – because “for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of ‘defer[ring] to an agency’s interpretation of its own regulations.’”  Significantly, Chief Justice Roberts wrote a concurrence acknowledging the debate over agency deference – an issue “going to the heart of administrative law” – and suggesting reconsideration of Auer v. Robbins in an appropriate case. For more information, contact James Tupper at tupper@tmw-law.com.