Questions Remain for the Timber Industry after Supreme Court's Decision in Decker V. Northwest Environmental Defense Center

Article excerpt

I. INTRODUCTION  II. STATUTORY AND REGULATORY BACKGROUND        A. Development of EPA's Silvicultural Rule       B. Factual and Procedural Background  III. THE NINTH CIRCUIT'S DECISION        A. The Silvicultural Rule       B. The Phase I Program  IV. IMPACTS TO AND REACTIONS FROM THE TIMBER INDUSTRY  V. THE AFTERMATH OF THE NINTH CIRCUIT'S DECISION        A. Appeals to the Supreme Court       B. EPA Rulemaking.  VI. THE SUPREME COURT        A. The United States' Amicus Brief       B. Other Amicus Briefs       C. Oral Argument and Supplemental Briefing       D. The Supreme Court's Opinion  VII. POTENTIAL IMPLICATIONS 

I. INTRODUCTION

For nearly three years between the Ninth Circuit decision holding that Clean Water Act (CWA)permits were required for stormwater discharges from logging roads and the Supreme Court's ruling on the issue, the timber industry was placed in the uncomfortable position of facing potential enforcement actions despite the absence of an available or practicable permitting scheme. (1) The Supreme Court's reversal of the Ninth Circuit in Decker v. Northwest Environmental Defense Center (Decker) (2) provides substantial comfort to the timber industry, as well as landowners and state and federal agencies in the West and elsewhere in the United States.

However, due to the limited scope of the Supreme Court's opinion and the unusual eleventh-hour rulemaking by the Environmental Protection Agency (EPA), which was presumably intended to moot the issues on appeal, the timber industry and other stakeholders are not yet entirely out of the woods. Litigation regarding EPA's new rule is already underway and, although Decker certainly undermines the likelihood of that petition prevailing, the Supreme Court's decision not to address whether discharges from logging roads constitute "point sources" or interpret EPA's new rule leaves some uncertainty about the litigation's resolution. Additionally, EPA's new rule suggests the agency intends to move forward with additional rulemaking that would cover some types of logging or forest roads within the CWA's "Phase II" stormwater program. Although that program is generally less prescriptive than the "Phase I" program at issue in Decker, it could nevertheless layer additional regulatory requirements on an industry already subject to various types of state and local regulation.

This Article describes the odyssey of the Decker litigation, including its background and aftermath, and highlights the practical implications of regulating discharges from logging roads. In doing so, this Article describes the statutory and regulatory background to the Ninth Circuit's decision, the legislative and regulatory efforts to unwind that decision, the Supreme Court's reversal of the Ninth Circuit, and the epilogue to the Supreme Court decision, including several issues that remain unresolved.

II. STATUTORY AND REGULATORY BACKGROUND

The CWA prohibits the discharge of a "pollutant" into waters of the United States from a "point source" without a permit, such as a National Pollutant Discharge Elimination System (NPDES) permit. (3) The CWA defines a "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit... from which pollutants are or may be discharged." (4)

In 1987, faced with the prospect of overwhelming EPA and state agencies with processing and monitoring compliance for innumerable permits for stormwater discharges, Congress amended the CWA to provide a phased approach for addressing stormwater discharges through section 402(p) of the CWA. (5) Phase I covers enumerated sources of stormwater pollution, including stormwater "associated with industrial activity" (6)--a term the CWA does not define. The Phase II stormwater regulations apply to any additional stormwater discharges that EPA designates to protect water quality. (7) For such designated discharges, EPA need not require NPDES permits, but must "establish a comprehensive program" that "may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate. …