No Permit Required for Stormwater Discharges from Logging Roads, Supreme Court Rules; Attention Shifts to EPA Rulemaking

The Supreme Court continued its recent trend of reversing Ninth Circuit environmental decisions,[1] holding last week in Decker v. Northwest Environmental Defense Center (NEDC) that stormwater discharges from logging roads are not “associated with industrial activity” and do not require permits under the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) program.[2] The decision comes despite an eleventh-hour attempt by EPA to moot the issue by promulgating a rule clarifying that the types of discharges do not require permits under the CWA’s “Phase I” stormwater program.

The decision is welcome news to landowners, logging companies, and state and federal agencies in the west. But the decision does not completely put the issue to rest—NEDC has already filed a petition to review EPA’s new rule and litigation could continue. Although the Supreme Court’s decision certainly undermines the likelihood of that petition prevailing, the Supreme Court did not address a dominant issue before the lower courts—whether discharges from logging roads constitute “point sources” notwithstanding the Silvicultural Rule—nor did it address EPA’s new rule. Moreover EPA could move forward with additional rulemaking covering stormwater discharges from logging roads under the CWA’s “Phase II” stormwater program.

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