Academic journal article Harvard Law Review

Clean Water Act - Auer Deference

Academic journal article Harvard Law Review

Clean Water Act - Auer Deference

Article excerpt

It is a long-settled principle of administrative law that an agency's interpretation of its own regulation receives significant deference from a reviewing court. As the Supreme Court announced in Bowles v. Seminole Rock & Sand Co. (1) and unanimously affirmed in Auer v. Robbins, (2) such an interpretation is controlling unless it is "plainly erroneous or inconsistent with the regulation." (3) Although long uncontroversial, so-called "Auer deference" has recently received scholarly (4) and judicial (5) scrutiny. Last Term, in Decker v. Northwest Environmental Defense Center, (6) the Court applied Auer deference in the traditional manner, but three Justices signaled an interest in abandoning the doctrine. Auer's days may be numbered. But rather than eliminate Auer deference, the Court should consider a compromise: adopting a version of the "one-bite rule" of regulatory interpretation employed by several circuit courts. This development would address Auer detractors' concerns about agency incentives while preserving agencies' ability to clarify their regulations after initial promulgation.

Logging companies use roads through Oregon's Tillamook State Forest to harvest timber. (7) The companies typically channel stormwater off these roads using a series of ditches. (8) This runoff often contains sediment and other pollutants, and sometimes reaches rivers and lakes, where it can degrade water quality and harm aquatic life. (9)

The Clean Water Act (10) (CWA) requires companies to secure National Pollutant Discharge Elimination System (NPDES) permits before they discharge pollutants from any "point source" into the navigable waters of the United States. (11) An Environmental Protection Agency (EPA) regulation, the Silvicultural Rule, (12) specifies that certain logging-related discharges require permits, unless those sources are otherwise exempted. (13) One such instance is the CWA's exemption of "discharges composed entirely of stormwater," unless the discharge is "associated with industrial activity." (14) Before its amendment in December 2012, a second EPA regulation, the Industrial Stormwater Rule, (15) defined discharges "associated with industrial activity" as those "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." (16) The Rule specified that facilities classified under Standard Industrial Classification 24 (17)--a classification that includes "[l]ogging" (18)--are considered to be engaged in "industrial activity." (19) It also stated that "[f]or the categories of industries identified in this section, the term ['storm water discharge associated with industrial activity'] includes, but is not limited to, storm water discharges from ... immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or byproducts used or created by the facility." (20)

In September 2006, the Northwest Environmental Defense Center (NEDC) filed suit under the CWA's citizen-suit provision (21) against various logging and paper-product companies alleging that defendants violated the CWA by discharging stormwater runoff from Tillamook logging roads into two Oregon rivers without the necessary NPDES permits. (22) The district court dismissed the case for failure to state a claim. (23) It held that NPDES permits were not required under the Silvicultural Rule because the discharges resulted from natural runoff, and thus were not point sources. (24)

The Court of Appeals for the Ninth Circuit reversed. (25) Writing for a unanimous panel, Judge Fletcher (26) found that the Silvicultural Rule was ambiguous regarding whether natural runoff (27) channeled through ditches and culverts was a point source, but that the statutory definition of point source encompassed such runoff. The court also held that the Industrial Stormwater Rule unambiguously did not exempt the runoff at issue, as the roads were both "immediate access roads" and "primarily dedicated for use by [an] industrial facility. …

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