Decker v. Nw Envtl Def. Ctr.

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The Clean Water Act requires that National Pollutant Discharge Elimination System (NPDES) permits be secured before pollutants are discharged from any point source into navigable waters of the United States, 33 U. S. C. 1311(a), 1362(12). An Environmental Protection Agency implementing regulation, the Silvicultural Rule, specifies which types of logging-related discharges are point sources, requiring NPDES permits unless some other provision exempts them. One exemption covers “discharges composed entirely of stormwater,” 33 U. S. C. 1342(p)(1), unless the discharge is “associated with industrial activity.” Under the EPA’s Industrial Stormwater Rule, the term “associated with industrial activity” covers 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.” A final version of a recent amendment to the Industrial Stormwater Rule clarifies that the NPDES permit requirement applies only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities, which are all listed in the Silvicultural Rule. Georgia-Pacific has a contract to harvest timber from an Oregon forest. When it rains, water runs off its logging roads into ditches that discharge the water into rivers and streams, often with sediment, which may be harmful to fish and other aquatic organisms. NEDC sued Georgia-Pacific and state and local governments. The district court dismissed, concluding that NPDES permits were not required because the ditches were not point sources of pollution under the CWA and the Silvicultural Rule. The Ninth Circuit reversed. The Supreme Court reversed, first holding that section1369(b), did not bar the district court from hearing a citizen suit against an alleged violator and seeking to enforce an obligation imposed by the CWA. The recent amendment to the Industrial Stormwater Rule did not make the case moot. Past discharges might be the basis for penalties even if, in the future, those discharges will not require a permit. The pre-amendment Rule, as construed by the EPA, exempted discharges of channeled stormwater runoff from logging roads from the NPDES requirement. The regulation is a reasonable interpretation of the statutory term “associated with industrial activity;” it was reasonable for the EPA to conclude that the conveyances at issue are “directly related” only to harvesting raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” The EPA has been consistent in its view that the types of discharges at issue do not require NPDES permits. View "Decker v. Nw Envtl Def. Ctr." on Justia Law