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Argument preview: Does channeling rainwater through a ditch require a Clean Water Act permit?

Next week, in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, the Court will review a controversial Ninth Circuit environmental decision that has swept up all three branches of government.  A panel of the court that included Justice Breyer’s younger brother Charles, sitting by designation, rejected the Environmental Protection Agency’s view that the federal Clean Water Act does not require permits for stormwater runoff from ditches and culverts on roads used for harvesting lumber (i.e., logging).  Congress was sufficiently unhappy with the decision that bipartisan majorities enacted legislation to stay permitting until the beginning of this Term, and members of Congress have introduced legislation seeking to restore EPA’s former approach.  To top it all off, EPA recently released proposed regulations for comment that, if finalized, would “clarify” that such stormwater runoff is not subject to permitting.

The case is of central importance to the logging industry and businesses that rely on it.  If the Ninth Circuit’s decision is upheld (and, of course, the regulations exempting logging roads are not finalized soon), in the near term, it would mean a significant additional regulatory burden on logging operations because of the expense in obtaining permits, the ability of environmental groups to delay the permitting process, and the “mind boggling” number of logging roads nationally – there are an estimated 15,000 miles of logging roads in the State of Maine alone and hundreds of thousands more in the Northwestern United States.  Depending on the Court’s rationale, a variety of work-arounds (from revised EPA regulations to blanket permits) could render the impact manageable in the longer term, but there is no question that affirmance would be disruptive to the logging industry.

When the case was first granted, many believed that the case reflected overreaching by the Ninth Circuit and concluded it was headed towards certain and overwhelming reversal.  The Northwest Environmental Defense Center (“NEDC”) – the plaintiff below, but the respondent at the Court – must “run the table” and win every issue presented to prevail.  Still, the case’s fate is far from clear.

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Background.  The federal Clean Water Act (“CWA”) prohibits the discharge of any pollutant into navigable waters from a “point source” without an NPDES (“National Pollutant Discharge Elimination System”) permit.  The archetype “point source” is a discharge pipe from a factory (say, the one on page 23 of Bill Peet’s early environmentalist book, Farewell to Shady Glade (1966), or this classic from 1970), but the term is defined expansively to include “any discernible, confined, and discrete conveyance, including, but not limited to any pipe, ditch . . . conduit, [or] discrete fissure.”  Because, as Justice Scalia observed in his plurality opinion in Rapanos v. United States, the average CWA permit applicant spends “788 days and $271,596 in completing the process,” generally parties would rather avoid permitting and instead be subject to the CWA’s separate controls on “nonpoint sources” (which are used for such things as agricultural runoff).

To access trees, loggers must build dirt and gravel access roads through forests, many of which are on public land.  To reduce erosion during rainstorms, such roads often channel stormwater using ditches and culverts; the stormwater then sometimes finds its way into streams, rivers, and lakes, carrying road dirt and debris, which is a CWA “pollutant.”  The initial question, then, is whether the logging roads’ ditches and culverts are CWA “point sources” so that such discharges are subject to NPDES permitting.

In 1973, EPA attempted by regulation to exempt stormwater runoff from silviculture (the growing and harvesting of trees); the D.C. Circuit held that EPA lacked authority to exempt categories of point sources, but in dicta “suggest[ed] that there is room here for exclusion by interpret[ing]” the definition of “point source.”  In 1976, EPA took the hint and adopted “the Silvicultural Rule,” which excluded from the definition of “point source” “road construction and maintenance from which there is natural runoff.”  Remember that term, “natural runoff.”  Then, in 1987, Congress amended the CWA specifically to address stormwater discharges, providing that stormwater discharge “associated with industrial activity” would be part of Phase I of EPA implementation; EPA regulations defined that term to include “[f]acilities classified as Standard Industrial Classification . . . 24.”  Subcategory 2411 of that classification is “logging.”  If the discharges are not covered under the Phase I stormwater regulations, that is a separate basis for concluding that they are not subject to CWA permitting.

The Suit.  The NEDC brought suit under the CWA’s citizen-suit provision alleging that stormwater discharges from two logging roads in Oregon’s Tillamook State Forest violated the CWA because the roads channel stormwater and discharge them into waters via man-made ditches, pipes, and culverts, which it argued were point sources.  With the United States supporting the defendants/petitioners as amicus curiae (and arguing that stormwater channeled through ditches and culverts was exempt “natural runoff” under the Silvicultural Rule), the district court dismissed the action.

But the Ninth Circuit rejected the government’s interpretation and reversed.  Writing for the court, Judge William Fletcher acknowledged that the government’s interpretation of the Silvicultural Rule “reflects the intent of the EPA in adopting the rule,” but held that reading the Rule not to exempt stormwater channeled through ditches was preferable because it would “allow [the court] to construe the Rule to be consistent with the statute,” and specifically, the definition of “point source.”   The court also rejected EPA’s alternative argument that even if channeled runoff constituted a “point source” discharge, it was not subject to CWA permitting because it was not “associated with industrial activity” under the Phase I regulations, because “logging” was covered as an industrial activity under the governing definitions.

Petitioners sought rehearing.  Although none of the parties had originally challenged jurisdiction, the (Bush Administration’s) EPA filed an amicus brief arguing that a suit challenging EPA’s interpretation of its regulation could not be brought in district court under the CWA’s citizen-suit provision, 33 U.S.C. § 1365(a) (which is designed to require parties to comply with federal law), but must instead be brought under the Act’s provisions for challenging agency action, 33 U.S.C. § 1369(b)(1), which requires the suit to be brought directly in the court of appeals, generally within 120 days after the relevant EPA action.  The Ninth Circuit denied rehearing but issued a superseding opinion concluding that the challenge was properly brought as a citizen suit rather than under the “judicial review” provision because the environmental groups were not challenging the Silvicultural Rule itself, but the private actions of loggers that the petitioners sought to defend by relying on an incorrect interpretation of that Rule.  The suit was timely, the court said, because the government first took the position that the Silvicultural Rule did not require permits for stormwater runoff channeled through man-made ditches in an amicus brief in this case.

As an indication of the economic importance of the case and displeasure in Congress with a decision that, if it stands, will manifestly interfere with logging, Congress enacted an appropriations rider forbidding permitting under the Ninth Circuit’s theory.  Although that provision expired September 30, just before the start of the Term, other legislation has been introduced to exempt channeled logging-road runoff from permitting; that legislation is going nowhere at the moment, but that might change if the Supreme Court affirmed.

The Cert. Stage.  After Doug Decker, the Oregon State Forester, and Georgia-Pacific West, Inc., sought cert. – supported by a host of amici – the Court called for the views of the Solicitor General.  The Solicitor General responded that the Ninth Circuit’s decision was wrong on the merits, but that review was not warranted because the circuits were not divided and, more to the point, EPA had announced its in­tent to promptly amend its Phase I stormwater regulations to make clear that discharges of the sort at issue here do not require permitting.  Like a number of environmental cases in which the Solicitor General has filed invited amicus briefs arguing that a decision was incorrect but not cert. worthy (including another case from the same Conference as Decker/Georgia Pacific), the Court disagreed with the government’s recommendation and granted cert., causing Professor Jonathan Adler to comment, “It’s almost as if the Roberts Court does not trust the judgment of the SG’s office as to whether environmental cases are cert. worthy.”

The case presents three issues.  The environmental group must win all of them to prevail.

1.  Was Jurisdiction Proper?  The CWA provides jurisdiction for two types of challenges – in the courts of appeals over suits against EPA challenging the validity of EPA regulations (the “judicial review” provisions), which must be brought “within 120 days” of the rule’s promulgation unless “grounds arising after the 120-day filing window” restarted the clock; and in the district courts over suits seeking to enforce EPA regulations (the “citizen-suit” provisions).  In this case, the NEDC brought its action in federal district court, and did so decades after EPA issued its Silvicultural Rule.

While the Bush-era EPA took the position that the NEDC’s challenge was not properly brought using the citizen-suit provision, it reversed course under the (more citizen-suit-friendly) Obama administration, beginning with the amicus brief filed at the cert. stage.  In his merits brief, the Solicitor General argues that the Ninth Circuit properly exercised jurisdiction because the court of appeals did not declare invalid either the Silvicultural Rule or the Phase I industrial stormwater regulation, but simply rejected the interpretations of those rules set forth in the government’s amicus brief.  While the Solicitor General concedes it is a “closer question” whether the Ninth Circuit’s reinterpretation of the Silvicultural Rule raises a jurisdictional concern, he concludes jurisdiction was proper because the court of appeals’ reinterpretation brought the regulation into harmony with that court’s view of the statute, and did not determine that the regulation as written is invalid.

The NEDC, represented by Jeff Fisher and the Stanford Supreme Court Litigation Clinic, argues that the citizen suit is proper because it is seeking to enforce, not challenge, the CWA and its regulations, and the citizen-suit provisions do not restrict a court’s ability to interpret regulations.  The NEDC also argues that even if its arguments that the CWA unambiguously requires permits for the discharges at issue implied that certain regulations were invalid, it could still proceed under the citizen-suit provisions because (contrary to the state petitioners’ argument) the circuit-court judicial-review provision only applies to specific types of regulations that do not include those at issue here.  (That may represent a change of position; the NEDC below apparently conceded these regulations were subject to review under those provisions.)

Petitioners contend that, because the Silvicultural Rule deems “natural runoff” from forest roads to be a nonpoint source and thus outside permitting requirements, and the NEDC argues that those discharges are “point source stormwater discharges,” this suit presents a challenge to the validity of regulations that must be filed against EPA in the court of appeals within 120 days.  Citing 33 U.S.C. § 1369(b)(2), petitioners argue that regulations that should have been subject to review under the judicial-review provisions “shall not be subject to judicial review in any civil or criminal proceeding for enforcement,” and contend these are jurisdictional limitations, not mere “claim-processing rules.”  They argue that the Solicitor General’s contention that the Ninth Circuit engaged only in “interpretation” of regulations in a manner different from EPA was mere wordplay; the Ninth Circuit gave the Silvicultural Rule a different interpretation because it thought EPA’s interpretation was contrary to the CWA and thus unenforceable – in effect, the court invalidated aspects of the Silvicultural Rule.  Petitioners argue that the statutory exception to the 120-day clock for “grounds arising after” is inapplicable because it applies only to events that ripen a claim, and that the claim was ripe within 120 days of the promulgation or revision of the Silvicultural Rule or Phase I stormwater regulation decades ago.  They argue that the view set forth in the government’s amicus brief was not set forth for “the first time,” but rather represented a long-held position.

2.  Whether stormwater discharges through logging road ditches and culverts are “associated with industrial activity.”

The NEDC argues that logging roads are “associated with” logging operations, and petitioners’ highly mechanized tree harvesting and hauling activities are plainly “industrial” in nature.  If anything, the NEDC argues, EPA regulations eliminated ambiguity, since Standard Industrial Classification 24 includes “logging.”

The government, supporting petitioners, principally relies on its Phase I stormwater regulations rather than the Silvicultural Rule, arguing that “it represents the most appropriate ground on which to decide this case,” both to avoid jurisdictional issues about whether challenges to EPA’s interpretation of a regulation must be brought under a citizen-suit provision, and because this statute has a “current, more nuanced statutory scheme.”  The government and petitioners argue that EPA’s construction of its own regulation is entitled to Auer deference, and EPA has construed “Standard Industrial Classification 24” to mean only certain subcategories of silvicultural activities it had identified as point sources in the Silvicultural Rule (rock crushing, gravel washing, log sorting, and log storage facilities), and does not include runoff from logging roads.  Though the government states that the text of the Phase I regulation might not foreclose the NEDC’s alternative reading, EPA’s interpretation of its own rule is reasonable and entitled to Auer deference.  The government emphasizes that the Phase I regulations are an adequate and independent basis to support a holding favoring petitioners and the Court need not resolve the question of whether such discharges are from a “point source.”

3.  Whether stormwater channeled through logging road ditches and culverts constitutes discharges from a “point source.”

Although some observers expect the Court decision to be a Ninth Circuit “slap-down” favoring defendants/petitioners, others maintain the point source issue will be “an easy one” for the NEDC.

The NEDC contends that the text of the CWA “could hardly be more straightforward” that the ditches and culverts at issue here fall within the capacious terms of the CWA, which specifically includes “any pipe, ditch, channel, tunnel, [or] conduit . . . .”  It notes that another CWA permitting regime (for discharge of dredge or fill material) expressly exempts material from “forest roads” and “silviculture,” including “harvesting for the production of . . . forest products” and argues that the absence of a corresponding exemption for NPDES permits suggests an intent to cover such discharges.

The government and petitioners argue that “natural runoff” in the Silvicultural Rule is not defined, and is reasonably construed to include the “natural runoff” from rainstorms through man-made ditches and culverts.  The government has a heavier lift explaining why the Rule, so interpreted, is consistent with the statute, and argues that the CWA is intended to give EPA a fair amount of leeway in classifying what is a point source and what is a nonpoint source.  Petitioners argue that EPA has long interpreted the Rule not to apply to discharges channeled through man-made ditches and culverts.  But perhaps tellingly, the Solicitor General – representing the agency that should know  does not make a comparable argument.

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On balance, the NEDC has the more difficult challenge:  It must win all three arguments to prevail.  But while the early consensus appeared to be that the Supreme Court would clearly reverse the Ninth Circuit’s decision, focusing on the Silvicultural Rule, as argument approaches, it appears the case presents some closer questions.  The jurisdictional issue is of particularly broad importance, because affirmance could broaden the ability to challenge EPA interpretations of regulations.

[Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the respondent in these cases, but the author of this post is affiliated with another law firm.]


Recommended Citation: John Elwood, Argument preview: Does channeling rainwater through a ditch require a Clean Water Act permit?, SCOTUSblog (Nov. 27, 2012, 4:27 PM),