Stormwater Runoff: The Supreme Court’s Latest Obsession?

So far the most controversial case the U.S. Supreme Court has accepted for its October 2012 term involves the University of Texas-Austin’s affirmative action plan.  Will it take a gay marriage case is the big question.  If the Court’s objective is to lie low after deciding two particularly controversial cases—the Affordable Care Act cases and Arizona immigration case—stormwater runoff might be a safe subject matter to take up.  This perhaps explains why the Court has accepted not one but two stormwater runoff cases! 

While the general public may find stormwater runoff (and therefore these cases) to be a snooze it is a big deal to those who have to deal with it and regulate it i.e. state and local government.   In fact Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center is a federalism case of interest to state government.      

The question in this consolidated case is who should regulate stormwater runoff from logging roads:  state and local governments or the federal government.  The State and Local Legal Center (SLLC) filed an amicus brief in this case which CSG signed onto.  The issue the SLLC focused on in its brief is whether the lower court should have deferred to the Environmental Protection Agency’s (EPA) longstanding position that channeled stormwater runoff from logging roads doesn’t require an EPA permit. 

The Clean Water Act (CWA) requires EPA permits for the “discharge of any pollutant” from a “point source,” which includes ditches and channels, into “navigable waters of the United States.”  Since 1973, one year after the CWA was passed, the EPA has issued regulations exempting silvicultural (logging) activity from federal permitting requirements.  Yet, the Ninth Circuit held that state forest agencies and a county were required to obtain EPA permits for stormwater runoff flowing from logging roads into ditches, culverts, and channels.  The Ninth Circuit reasoned that Congress didn’t exclude silvicultural activity from the definition of a “point source” and that the EPA could not exclude it through regulations.

The SLLC’s brief argues that the Ninth Circuit erred in concluding that an EPA permit is required for channeled stormwater runoff from logging roads.  First, the SLLC argues that under the CWA silvicultural stormwater runoff isn’t a “point source” discharge requiring a permit.  Second, the SLLC argues that assuming the CWA is ambiguous concerning whether silvicultural stormwater runoff is a “point source,” the Supreme Court should defer to the EPA’s longstanding position that it isn’t because EPA’s rule limits, rather than expands, federal authority to regulate land and water use, which state and local governments have traditionally regulated.  Finally, the SLLC’s brief points out that obtaining EPA permits for every ditch and channel on every logging road in the United States would be extremely costly and burdensome for state and local governments that are already regulating such stormwater runoff. 

A date for oral argument in this case has not yet been set.  The Supreme Court will issue an opinion in this case by June 30, 2013.