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Decker v. Northwest Environmental Defense Center

ELR Citation: 43 ELR 20062
Nos. 11-338, (U.S., 03/20/2013)

The U.S. Supreme Court held that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is not a point source discharge for which an NPDES permit is required. An environmental group filed suit claiming that the Oregon forestry department and several timber companies violated the CWA when they failed to obtain NPDES permits for discharges of channeled stormwater runoff from two logging roads in Oregon's Tillamook State Forest. The lower court dismissed the case, but the Ninth Circuit reversed, ruling that the discharges were "associated with industrial activity" under the Industrial Stormwater Rule, 40 C.F.R. §122.26(b)(14), which otherwise exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. The Court deferred to EPA's interpretation that the Industrial Stormwater Rule excludes the type of stormwater discharges from logging roads at issue in this case. The regulatory scheme, taken as a whole, leaves open the rational interpretation that the industrial stormwater rule extends only to traditional industrial buildings such as factories and associated sites and other relatively fixed facilities. Thus, it was reasonable for EPA to conclude that the conveyances at issue are "directly related" only to the harvesting of raw materials, rather than to industrial activities. The Court, therefore, reversed the Ninth Circuit's opinion to the contrary. Kennedy, J., delivered the opinion of the Court, in which Roberts, C.J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined, and in which Scalia, J., joined as to Parts I and II. Roberts, C.J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed an opinion concurring in part and dissenting in part. Breyer, J., took no part in the consideration or decision of the case.